[Federal Register Volume 75, Number 19 (Friday, January 29, 2010)]
[Rules and Regulations]
[Pages 4703-4705]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1873]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

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


Track Safety Standards; Continuous Welded Rail (CWR)

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

ACTION: Final rule; response to petition for reconsideration.

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SUMMARY: This document responds to a petition for reconsideration of 
FRA's final rule published on August 25, 2009, which revised the Track 
Safety Standards. FRA received one petition questioning the definitions 
of ``adjusting/de-stressing'' and ``buckling-prone condition'' as they 
are used with regard to continuous welded rail (CWR).

DATES: Effective Date: This final rule is effective on March 30, 2010.

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

SUPPLEMENTARY INFORMATION: 

Background

    Pursuant to (SAFETEA-LU), FRA published a final rule revising the 
Track Safety Standards on August 25, 2009 (74 FR 42988). FRA published 
a correcting amendment on October 21, 2009, which added compliance 
dates for railroads that had been inadvertently omitted from the final 
rule's compliance schedule. On September 25, 2009, FRA received a 
petition for reconsideration from the Association of American Railroads 
(AAR). This publication announces amendments to the final rule in 
response to the concerns expressed by the petitioner.

``Buckling-Prone Condition'' Definition

    In the petition, AAR stated that the definition of ``buckling prone 
condition'' included in the final rule at Sec.  213.119(l) was not 
proposed by FRA in the notice of proposed rulemaking. As such, the 
petitioner did not have an opportunity until the review of the final 
rule to address the definition. The final rule provides that a 
``buckling-prone condition'' exists ``when the actual rail temperature 
is above the actual rail neutral temperature. This varies given the 
geographical composition of the track.'' Section 213.119(g)(2)(ii) 
requires remedial action to be taken whenever a buckling prone 
condition exists. AAR argues that, literally interpreted, the final 
rule requires remedial action whenever the rail neutral temperature is 
exceeded. AAR states that this is not what FRA intended, as the neutral 
temperature is supposed to be between the maximum and minimum 
temperatures the rail is subject to and thus the neutral temperature 
will commonly be exceeded. AAR suggested that ``buckling-prone 
condition'' be defined as follows:

    Buckling-prone condition means when track conditions may be 
insufficient to restrain the track laterally at the rail 
temperatures actually experienced at that location.

    FRA reviewed the definition of ``buckling-prone condition'' and 
consulted with the Volpe Center to more narrowly define what is 
intended by this term. In the railroad industry, ``track buckling'' 
refers to the sudden lateral movement of the track due to thermally-
generated longitudinal rail forces. As the temperature rises above the 
actual rail neutral temperature, longitudinal expansion in rail can 
occur once a critical rail temperature is reached that can cause 
lateral misalignment of the track. Therefore, FRA concluded that CWR 
cannot always be considered in a ``buckling-prone condition'' if the 
rail temperature is only above the rail neutral temperature, without 
reaching the critical temperature that can cause track misalignment. As 
a result, FRA has determined that the definition in the final rule 
could be misleading by stating ``when the actual rail temperature is 
above the actual rail neutral temperature.''
    After consideration, FRA has determined that ``buckling-prone 
condition'' means a condition that can result in the track being 
laterally displaced due to high compressive forces caused by critical 
rail temperature combined with insufficient track strength and/or train 
dynamics.

``Adjusting/De-Stressing'' Definition

    The petition also noted an error in the definition of ``adjusting/
de-stressing.'' The final rule defines ``adjusting/de-stressing'' as a 
``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.'' AAR points out that it 
is not the temperature of the rail that is adjusted, but rather the 
rail neutral temperature that is adjusted. AAR suggested that FRA 
replace ``a rail's temperature'' with ``the rail neutral temperature'' 
in the definition for ``adjusting/de-stressing'' in Sec.  213.119(l). 
FRA has also noted this unintended omission in the definition and is 
amending the first sentence of the definition of ``adjusting/de-
stressing'' to mean ``a procedure by which a rail's neutral temperature 
is re-adjusted to the desired value.''

Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This action has been evaluated in accordance with existing policies 
and procedures, and determined to be non-significant under both 
Executive Order 12866 and DOT policies and procedures (44 FR 11034, 
Feb. 26, 1979). The original final rule was determined to be non-
significant. Furthermore, the amendments contained in this action are 
not considered significant because they generally clarify requirements 
currently contained in the final rule or allow for greater flexibility 
in complying with the rule. These amendments, additions, and 
clarifications will have a minimal net effect on FRA's original 
analysis of the costs and benefits associated with the final rule.

[[Page 4704]]

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive 
Order 13272 require a review of proposed and final rules to assess 
their impact on small entities. FRA certifies that this action is not 
expected to have a significant economic impact on a substantial number 
of small entities under the Regulatory Flexibility Act or Executive 
Order 13272. Because the amendments contained in this document 
generally clarify requirements currently contained in the final rule or 
allow for greater flexibility in complying with the rule, FRA has 
concluded that there are no substantial economic impacts on small units 
of government, businesses, or other organizations resulting from this 
action.

C. Paperwork Reduction Act

    This action does not change the information collection requirements 
contained in the original final rule.

D. Federalism Implications

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, ``Federalism'' (64 FR 
43255, Aug. 10, 1999). As discussed earlier in the preamble, these 
amendments to the final rule clarify definitions for compliance with 
the final rule governing CWR.
    Executive Order 13132 requires FRA to develop an accountable 
process to ensure ``meaningful and timely input by State and local 
officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.'' Under Executive Order 13132, the agency may not issue 
a regulation with federalism implications that imposes substantial 
direct compliance costs and that is not required by statute, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, the agency 
consults with State and local governments, or the agency consults with 
State and local government officials early in the process of developing 
the regulation. Where a regulation has federalism implications and 
preempts State law, the agency seeks to consult with State and local 
officials in the process of developing the regulation.
    FRA has determined that this action would not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, nor on the distribution of power and 
responsibilities among the various levels of government. In addition, 
FRA has determined that this action would not impose any direct 
compliance costs on State and local governments. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply.
    However, this final rule has preemptive effect. Section 20106 
provides that States may not adopt or continue in effect any law, 
regulation, or order related to railroad safety or security that covers 
the subject matter of a regulation prescribed or order issued by the 
Secretary of Transportation (with respect to railroad safety matters) 
or the Secretary of Homeland Security (with respect to railroad 
security matters), except when the State law, regulation, or order 
qualifies under the local safety or security exception to Section 
20106. The intent of Section 20106 is to promote national uniformity in 
railroad safety and security standards. 49 U.S.C. 20106(a)(1). Thus, 
subject to a limited exception for essentially local safety or security 
hazards, this final rule establishes a uniform Federal safety standard 
that must be met, and State requirements covering the same subject 
matter would be displaced, whether those State requirements are in the 
form of a State law, including common law, regulation, or order. Part 
213 establishes Federal standards of care that preempt State standards 
of care, but this part does not preempt an action under State law 
seeking damages for personal injury, death, or property damage alleging 
that a party has failed to comply with the Federal standard of care 
established by this part, including a plan or program required by this 
part. Provisions of a plan or program that exceed the requirements of 
this part are not included in the Federal standard of care.
    In sum, FRA has analyzed this action in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this action has no federalism 
implications, other than the preemption of State laws covering the 
subject matter of this final rule, which occurs by operation of law 
under Section 20106 whenever FRA issues a rule or order. Accordingly, 
FRA has determined that preparation of a federalism summary impact 
statement for this action is not required.

E. Environmental Impact

    FRA has evaluated this action 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 sections 4(c) and (e) of FRA's Procedures, the agency 
has further concluded that no extraordinary circumstances exist with 
respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this action 
is not a major Federal action significantly affecting the quality of 
the human environment.

F. Unfunded Mandates Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more (adjusted 
annually for inflation) currently $141,300,000 in any 1 year, and 
before promulgating any final rule for which a general notice of 
proposed rulemaking was published, the agency shall prepare a written 
statement'' detailing the effect on State, local, and tribal 
governments and the private sector. This action would not result in the 
expenditure, in the aggregate, of $141,300,000 or more in any one year, 
and thus preparation of such a statement is not required.

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355, May 22,

[[Page 4705]]

2001. Under the Executive Order, a ``significant energy action'' is 
defined as any action by an agency (normally published in the Federal 
Register) 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 action in accordance with Executive Order 13211. FRA has 
determined that this action is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Consequently, FRA 
has determined that this regulatory action is not a ``significant 
energy action'' within the meaning of Executive Order 13211.

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.

0
Accordingly, 49 CFR part 213 is amended by making the following 
correcting amendments:

PART 213--TRACK SAFETY STANDARDS

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

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


0
2. In Sec.  213.119(l), revise the definitions for ``adjusting/de-
stressing'' and ``buckling-prone condition'' to read as follows:


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

* * * * *
    (l) * * *
    Adjusting/de-stressing means a procedure by which a rail's neutral 
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-prone condition means a track condition that can result in 
the track being laterally displaced due to high compression forces 
caused by critical rail temperature combined with insufficient track 
strength and/or train dynamics.
* * * * *

    Issued in Washington, DC, on January 25, 2010.
Joseph C. Szabo,
Administrator.
[FR Doc. 2010-1873 Filed 1-28-10; 8:45 am]
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