[Federal Register Volume 76, Number 175 (Friday, September 9, 2011)]
[Rules and Regulations]
[Pages 55819-55825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-23133]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

[Docket No. FRA-2009-0007, Notice No. 4]
RIN 2130-AC35


Track Safety Standards; Concrete Crossties

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

ACTION: Final rule; response to petitions for reconsideration.

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SUMMARY: This document responds to petitions for reconsideration of 
FRA's final rule published on April 1, 2011, mandating specific 
requirements for effective concrete crossties, for rail fastening 
systems connected to concrete crossties, and for automated inspections 
of track constructed with concrete crossties. This document amends and 
clarifies the final rule.

DATES: The final rule is effective November 8, 2011.

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 Veronica Chittim, Trial Attorney, 
Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., Washington, 
DC 20950 (telephone: (202) 493-0273).

SUPPLEMENTARY INFORMATION: 

Background

    On August 26, 2010, FRA issued a Notice of Proposed Rulemaking 
(NPRM) as a first step to the agency's promulgation of concrete 
crosstie regulations per the Congressional mandate contained in Section 
403(d), of the Rail Safety Improvement Act of 2008 (Pub. L. 110-432, 
Division A) (RSIA). See 75 FR 52,490. On April 1, 2011, following 
consideration of written comments received in response to the NPRM, FRA 
published a final rule mandating specific requirements for effective 
concrete crossties, for rail fastening systems connected to concrete 
crossties, and for automated inspections of track constructed with 
concrete crossties. See 76 FR 18,073. FRA received two petitions for 
reconsideration in response to the final rule.
    On May 5, 2011, the International Brotherhood of Teamsters, 
Brotherhood of Maintenance of Way Employes Division (BMWED) filed a 
petition for reconsideration (BMWED Petition) of the final rule and on 
May 27, 2011, the Association of American Railroads (AAR) filed a 
petition for reconsideration (AAR Petition) of the final rule. In order 
to provide sufficient time to fully consider both Petitions, FRA 
delayed the effective date of the final rule until October 1, 2011. See 
76 FR 34,890 (June 15, 2011).
    The specific issues raised by these petitioners and FRA's responses 
to their petitions, are discussed in detail below in the ``Section-by-
Section Analysis'' portion of the preamble. The Section-by-Section 
analysis also contains a detailed discussion of each provision of the 
final rule which FRA has amended or clarified. 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, and are within the scope of the issues and options discussed, 
considered, or raised in the NPRM.

Section-by-Section Analysis

Amendments to 49 CFR Part 213

Section 213.109 Crossties
AAR Petition: Visibility of Prestressing Material
    The final rule provides that concrete crossties shall not be 
``broken through or deteriorated to the extent that prestressing 
material is visible.'' 49 CFR 213.109(d)(1). AAR requests that FRA 
amend 49 CFR 213.109(d)(1) to state, ``broken through or deteriorated 
to the extent outer prestressing strands are no longer in tension.'' 
AAR Petition at 3-4. In proposing such language, AAR asserts that FRA 
is inconsistent with the specifications in 49 CFR 213.335(d)(1) for 
Class 6 track. See AAR Petition at 3. AAR argues that ``FRA's concern 
is whether the prestressing material is in tension,'' as demonstrated 
by the discussion in the final rule. AAR Petition at 3.
    FRA declines to adopt AAR's recommendation to modify the language 
of 49 CFR 213.109(d)(1). The intent of 49 CFR 213.109(d)(1) is to 
ensure that concrete crossties with reinforcing strands that have lost 
their bond to the concrete are considered defective. This intent is 
clearly described in the preamble to the final rule. See 76 FR 18,077-
18,079 (Apr. 1, 2011). While a concrete crosstie that is ``broken 
through or deteriorated to the extent outer prestressing strands are no 
longer in tension'' would be defective, the standard that AAR proposes 
is difficult to quantify in the field, as an inspector would have 
difficulty knowing if the prestressing strands are no longer in 
tension. AAR's proposal would add a qualifier to the standard, making 
the regulation more subjective and more difficult to enforce.
    AAR suggests using the same standard for Sec.  213.109(d)(1) as 
specified in Sec.  213.335(d), for Class 6 track. Section 213.335(d) 
provides that the crosstie cannot be ``so deteriorated that the 
prestress strands are ineffective or withdrawn into the tie at one end 
and the tie exhibits structural cracks in the rail seat or in the gage 
of track.'' FRA believes that the standard adopted for lower speeds of 
track in Sec.  213.109(d)(1) improves upon Sec.  213.335(d) for lower 
classes of track by more clearly defining what it means to be 
``ineffective'' and explaining how to find ``structural cracks.'' FRA 
notes that while further study would be needed to determine whether 
this clarifying language would also be appropriate in higher classes of 
track, any potential amendment to Sec.  213.335(d) would be outside the 
scope of this proceeding, as modifications to the language in Sec.  
213.335(d) was neither raised in the NPRM, nor discussed in the final 
rule. However, FRA would be willing to address the language in Sec.  
213.335(d) in future updates to part 213.
    AAR further states that FRA's position to reject the proposed 
phrase ``completely broken through'' for Sec.  213.109 is unconvincing. 
See AAR Petition at 3. Contrary to this concern, FRA's intent was to 
simply provide consistency in the language used for wooden crossties 
and does not find it necessary to introduce ambiguity by adopting 
differing language without sufficient justification.
    Although AAR is concerned with the situations where prestressing 
material is visible and yet not defective, FRA clearly explained in the 
preamble to the final rule in response to AAR's comment that FRA is not 
concerned with prestressing material being visible due to a wheel 
impact or due to the manufacturing process. See 76 FR 18,077-18,079 
(Apr. 1, 2011). FRA thoroughly explained its intent in the preamble 
that by saying the material is ``visible'' it does not mean ``a 
concrete tie being simply chipped due to wheel impact as opposed to 
actual deterioration.'' 76 FR 18,077 (Apr. 1, 2011). FRA also clarified 
that it is ``not

[[Page 55820]]

concerned with reinforcing material that may be left visible on the end 
of a tie during the manufacturing process.'' 76 FR 18,077 (Apr. 1, 
2011). While this explanatory language is not in the rule text itself, 
it is clear that FRA intended to clarify in the preamble those 
prestress concrete crosstie conditions that are of concern to the 
agency. See Nov. 18, 2008, Concrete Crossties Task Force (CCTF) meeting 
document (TSCCTF08-1118-06 CONSENSUS WG & TF CLEAN Document For 
Concrete Crossties, ``NOTE: FRA wants to describe pre-stress tie 
conditions, to be covered in the compliance manual or preamble''). As 
FRA adequately addressed AAR's comment to the NPRM in the preamble to 
the final rule, FRA declines to adopt AAR's proposed change to Sec.  
213.109(d)(1).
AAR Petition: The Use of Crossties With One Fastener on a Rail
    AAR argues that Sec.  213.109(d)(6) should be amended to state: 
``[c]onfigured with less than two fasteners on the same rail except (i) 
as provided in Sec.  213.127(c) and (ii) where the fastenings on two 
adjacent ties on class 1 and class 2 track provide the equivalent of 
the fastenings on one tie, in which case the two adjacent ties shall be 
counted as one tie.'' AAR Petition at 5.
    This issue was raised by AAR in previous comments and addressed by 
FRA in the final rule. AAR has provided nothing new to sway the 
agency's views on the issue. Thus, FRA is again declining to adopt the 
proposal. See 76 FR 18,077 (Apr. 1, 2011). In response to the issue, 
FRA has already stated the following:

    FRA responds that, as with nonconcrete ties, one of the safety 
requirements of an effective concrete tie is that it be able to hold 
fasteners. Consequently, FRA is declining to accept AAR's 
recommended change to the regulatory text due to this safety 
concern.

76 FR 18,077 (Apr. 1, 2011). In the Section-by-Section analysis of the 
final rule, FRA further stated the following with respect to AAR's 
proposal:

    FRA contends that, as with non-concrete ties, one of the safety 
requirements of an effective concrete tie is that it be able to hold 
fasteners. Thus, FRA is declining to accept this suggested change to 
the regulatory text due to this safety concern.

76 FR 18,079 (Apr. 1, 2011).
    As noted above, FRA believes that it responded to this issue 
adequately in the preamble to the final rule and that this issue is 
duplicative and need not be addressed. See 49 CFR 211.29(c). However, 
FRA would like to take this opportunity to further explain its 
reasoning. Although AAR argues that the rule text that disqualifies 
concrete crossties under the conditions described will impose a 
significant cost on the industry, FRA notes that it has not changed its 
enforcement policy in the final rule and those concrete crossties that 
are unable to hold fasteners would have been defective even prior to 
the issuance of the final rule. The final rule did not modify the 
existing requirement that any type of crosstie with a missing fastener 
is considered defective in part 213. The Track Safety Standards require 
that to be an effective crosstie, it must be able to hold fasteners 
that can restrain the rail. The crosstie, rail, and fasteners work 
together as a system to provide effective restraint.\1\ FRA concedes 
that the BNSF Railway (BNSF), the only railroad known to FRA that 
utilizes defective crossties in this manner, will need to spend 
substantial funds to remediate any trackage that consists of these 
defective crossties. However, this cost is not a new cost as a result 
of the final rule, but merely the cost of compliance with part 213 as 
it existed prior to the final rule. Finally, amending the rule text is 
not an appropriate avenue to address one railroad's isolated and 
limited practice on approximately fifty miles of non-mainline track.\2\ 
A more appropriate avenue would be for BNSF to seek a waiver from the 
FRA Railroad Safety Board, pursuant to the procedures contained in 49 
CFR part 211.\3\
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    \1\ See 76 FR 18,073, 18,079 (Apr. 1, 2011):
    The rail and fastener assembly work as a system, capable of 
providing electrical insulation, and adequate resistance to lateral 
displacement, undesired gage widening, rail canting, rail rollover, 
and abrasive or excessive compressive stresses. * * * Part of the 
complexity of crosstie assessment is the fastener component. Both 
crossties and fasteners act as a system to deliver the expected 
performance effect. A non-compliant crosstie and defective fastener 
assembly improperly maintains the rail position and support on the 
crosstie and contributes to excessive lateral gage widening (rail 
cant-rail rollover), and longitudinal rail movement because of loss 
of toeload.
    \2\ AAR's Petition included BNSF's submission of its May 2011 
findings, based on reports from a geometry car that had operated 
over BNSF's Seadrift subdivision on December 14, 2010. According to 
AAR, BNSF's practice of using crossties in this manner will not 
hinder, but may actually improve safety. FRA notes that BNSF's 
findings were based on the operation of trains at ten miles per 
hour, over an eight mile segment of track designed for twenty-five 
miles per hour. This data alone is insufficient to demonstrate that 
this practice would prevent rollover at higher speeds and varying 
conditions or apply more broadly than as shown on this particular 
trackage. FRA also notes that AAR states that ``there are eight 
miles of track with approximately 80 percent of the ties consisting 
of ties with one defective fastener (approximately 20 percent of the 
ties are new).'' AAR Petition at 5. If this description is correct, 
this track generally meets the Class 1 criteria of 5 non-defective 
ties per 39 feet of track.
    \3\ FRA may waive its regulatory requirements when a waiver is 
in the public interest and consistent with railroad safety. In doing 
so, FRA often imposes conditions designed to ensure safety. If a 
railroad believes that there are some FRA requirements applicable to 
it that should be waived, it may petition for a waiver under the 
procedures set forth in 49 CFR part 211. Any such petition should 
specify why the railroad believes it cannot comply with the 
regulation and what alternative measures it will take to ensure 
safety. See 49 CFR 211.9. If FRA's Railroad Safety Board determines 
that a railroad can provide, through alternative procedures, the 
same level of safety that the FRA regulations provide, then the 
Safety Board may grant the waiver. FRA's Railroad Safety Board's 
decision to restrict the exercise of FRA's regulatory authority in 
no way constrains the exercise of its statutory emergency order 
authority under 49 U.S.C. 20104. That authority was designed to 
address imminent hazards not dealt with by existing regulations and/
or so dangerous as to require immediate, ex parte action on the 
government's part.
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AAR Petition: Spacing of Concrete Crossties at Rail Joints
    AAR requests amending Sec.  213.109(e)(1) to add ``(50 inches in 
the case of concrete ties)'' after ``48 inches'' and Sec.  
213.109(e)(3) to add ``(25 inches in the case of concrete ties)'' after 
``24 inches.'' AAR Petition at 6.
    The spacing requirements for crossties at rail joints contained at 
Sec.  213.109(e), were not modified by the final rule. The 
specifications for crossties' spacing are based on providing sufficient 
support to a rail joint and are not dependent on the type of crosstie 
material used, whether the crossties are made of wood or concrete. For 
Class 1 and Class 2 track, the regulation provides that each rail joint 
shall be supported by at least one crosstie whose centerline is within 
24 inches of each rail joint location. 49 CFR 213.109(e)(1). For 
Classes 3, 4, and 5, each rail joint shall by supported by either at 
least one non-defective crosstie within 18 inches of the joint, or have 
two crossties, one on each side of the rail joint, whose centerlines 
are within 24 inches of the rail joint. 49 CFR 213.109(e)(2), (3). The 
Track Safety Standards already allow for flexibility in the spacing of 
crossties.\4\ Although it may be true that the industry spaces concrete 
crossties further apart than wooden crossties, all crossties, wood or 
concrete, must provide effective support for the rail joint.
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    \4\ For example, the railroads have a range of crosstie spacing 
options, between 19.5 inches and 30 inches, depending on the size of 
the crosstie, the size of the rail, and the class of track. The 
industry-recommended practice is to avoid placing a concrete 
crosstie directly underneath the adjoining ends of two rails, making 
a rail joint, as the compressive forces downward on the concrete 
crosstie would deteriorate the concrete crosstie quickly.
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    AAR's suggestion does not appear to have been previously raised in 
the

[[Page 55821]]

RSAC process or in any of the comments to the NPRM. Nor has AAR 
provided FRA with any data to support its contention that concrete 
crossties should be treated differently from wood crossties in this 
manner. Moreover, AAR has not provided any basis for why FRA must 
consider these additional facts, or explained why these facts were not 
presented to the Administrator within the allotted time. See 49 CFR 
211.29(b). Thus, FRA is denying AAR's request. Furthermore, for the 
reasons noted above, FRA believes that the issue being raised by AAR is 
outside the scope of this proceeding and that it is inappropriate for 
FRA to address the issue at this late stage of the rulemaking 
proceeding.
Section 213.234 Automated Inspection of Track Constructed With Concrete 
Crossties
AAR Petition: Whether Automated Inspection Equipment Cannot Measure 
Rail Seat Deterioration as Required
    AAR argues that ``today's automated inspection equipment cannot 
measure rail seat deterioration at all, let alone within \1/8\ of an 
inch.'' AAR Petition at 5. Further, AAR states that ``automated 
equipment is not capable of meeting the standard set forth in 
subsection 213.234(d).'' AAR suggests deleting Sec.  213.234(d), (e), 
and (h). See AAR Petition at 5.
    Throughout the RSAC process, the parties agreed that automated 
inspections were a good approach to locating areas of rail seat 
deterioration. Indeed, the NPRM states that ``[o]ther than automated 
inspection, there are currently no other tools capable of aiding in the 
detection of rail seat deterioration.'' 75 FR 52,497 (Aug. 26, 2010). 
FRA is surprised that AAR asserts at this stage in the rulemaking 
process that the technology to perform these types of automated 
inspections does not exist.
    Although AAR is technically correct that automated equipment cannot 
currently measure rail seat deterioration directly, today's automated 
equipment can indicate locations of rail seat deterioration. Rail seat 
deterioration is indicated as a result of interpolations and 
calculations from rail cant measurements. The rail cant measurements 
provide an indication to the designated Sec.  213.7 person that the 
location should be field-verified. The railroad industry did not want 
to be limited to a requirement to locate rail seat deterioration 
through automated inspection using the rail cant method alone. In 
response to this concern, FRA removed the provision initially proposed 
in the NPRM requiring automated inspections of rail cant. Instead, FRA 
chose to use ``a performance-based standard'' for automated inspections 
that would indicate rail seat deterioration to the accuracy specified 
by Sec.  213.234, or \1/8\ of an inch, without mandating which 
technology should be used. See 76 FR 18,076-18,077, 18,080-18,081 (Apr. 
1, 2011).
    The design and practicality of all automated and autonomous 
geometry measurement systems is a supplement to visual inspection 
efforts toward identifying locations of greatest derailment risk. It 
has been FRA's objective and policy that on-the-ground visual 
verification must be done by inspectors to validate not only rail seat 
deterioration, but all track structure and geometry conditions 
discovered by automated means. A credible gage measurement restraint 
system (GRMS) is the preferred choice, however, only FRA's DOTX 218 is 
properly equipped to vertically and laterally load the rails into the 
crosstie seat area. FRA's other cars load vertically, but not 
necessarily completely load the rails laterally to ``seat'' the rail on 
the crosstie pad in all instances. FRA's rail profiling system (rail 
cant method) provides a highly accurate indication (advisory) of 
possible rail seat deterioration. FRA's safety strategy is to promptly 
identify rail seat deterioration locations with DOTX 217, 219, and 220 
cars' onboard rail profiling systems, then re-inspect those areas 
indicating rail seat deterioration conditions. FRA's automated 
inspection vehicle uses rail cant to indicate areas of rail seat 
deterioration, to an accuracy level of within at least one degree of 
rail cant, which is equivalent to \1/8\ of an inch of rail seat 
deterioration.
    Additionally, there were presentations made at the CCTF meetings as 
part of the RSAC process, describing technologies that can detect or 
indicate rail seat abrasion. These included systems used by Georgetown 
Rail Equipment Company, Holland Company LP, and ENSCO, Inc.\5\ 
Georgetown Rail Equipment Company represents that their ``scanning'' 
system utilizes laser imagery to ``see'' height differences of ties, 
scanning both the inside and outside of the crosstie.\6\ FRA believes 
that BNSF may use this ``scanning'' system currently on parts of its 
concrete crossties trackage. AAR's Petition included geometry car 
reports for a track geometry car that operated over BNSF's Seadrift 
subdivision on December 14, 2010, measuring rail cant. See AAR Petition 
at 5, 25, 32. While FRA's system of calculating rail cant cannot 
technically ``measure'' rail seat deterioration, it does provide 
indications of rail seat deterioration. FRA realizes that the rule text 
is technically incorrect to require that an automated inspection 
measurement system ``measure'' rail seat deterioration to within \1/8\ 
of an inch. FRA wishes to clarify that it is requiring the automated 
measurement system to ``locate'' rail seat deterioration. It is up to 
the railroad whether it will use rail cant to indicate locations of 
rail seat deterioration, to utilize the scanning capability that has 
been proven effective at detecting dangerous areas of rail seat 
deterioration, or to use any other demonstrated effective and accurate 
technology.
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    \5\ See, e.g. ``Rail Seat Abrasion Detection, November 2008 
Update, RSAC Meeting Nov. 19-20, 2008, by Richard Reiff, TTCI, AAR & 
BNSF Cooperative Project (comparing detection systems for rail seat 
abrasion, utilizing rail cant data or its equivalent). For example, 
the presentation compares the BNSF TGC85 car, the Holland TrackStar, 
the FRA T-20 car, the FRA T-18, and Georgetown Rail/Aurora systems. 
Also note the availability of rail profile systems offered by 
companies such as Plasser American, KLD Labs Inc., MERMEC Inc., 
ENSCO, Inc., Holland Company LP, and Georgetown Rail Equipment 
Company.
    \6\ The scanning system measures the crosstie voids against the 
nominal height of the crosstie design, usually within a tolerance of 
\1/16\ of an inch.
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    FRA also recognizes that detecting rail cant alone will not 
necessarily demonstrate all possible locations of rail seat 
deterioration. For example, FRA's geometry car will not find areas of 
rail seat deterioration that are due to compression forces from loads 
onto the crosstie. However, FRA's geometry car will locate rail seat 
deterioration due to rail cant in curved track, which are the hardest 
areas to detect manually. The automated inspection provision contained 
in Sec.  213.234 was never intended to require railroads to detect all 
areas of rail seat deterioration, but rather to supplement manual 
visual inspections.
    Automated inspection technology is able to detect rail seat 
deterioration to an accuracy of \1/8\ of an inch, as demonstrated 
above. Furthermore, the Final Regulatory Impact Analysis explained in 
detail how FRA estimated the costs of possible upgrades to railroads' 
existing technology or equipment to detect rail seat deterioration. See 
document number 6 in the public docket of this proceeding, at 38. FRA 
believes that all Class 1 railroads, Class 2 railroads, intercity 
passenger railroads, and commuter railroads servicing a community 
greater than 50,000 people currently conduct automated geometry 
inspections of their

[[Page 55822]]

track at frequencies roughly twice as great as those required in the 
final rule. Moreover, most major railroads with concrete crossties 
already perform automatic inspections to detect rail seat deterioration 
(either through the rail cant method or through the ``scanning'' 
method), and most of these railroads already have equipment that can 
measure within \1/8\ of an inch of accuracy.\7\ Thus, FRA denies AAR's 
request to delete the automated inspection requirements contained in 
Sec.  213.234, but FRA clarifies that by requiring measurement of rail 
seat deterioration, FRA actually meant that the technology had to 
``indicate'' rail seat deterioration. Consequently, FRA amends Sec.  
213.234(d) and (g) accordingly.
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    \7\ For example, CSX contracts Holland Company LP's GRMS system 
to automatically inspect their concrete crossties, which can measure 
rail cant up to \1/2\ of a degree (equivalent to \1/16\ of an inch). 
Additionally, some regional railroads contact FRA to perform and 
receive the benefit of an automated inspection, which can calculate 
up to \1/2\ of a degree. The rail profile systems offered by 
companies such as Plasser American, KLD Labs Inc., MERMEC Inc., 
ENSCO, Inc., Holland Company LP, Georgetown Rail Equipment Company 
report a rail cant accuracy of approximately \1/16\ of an inch at 
the rail base/crosstie interface. FRA believes that all Class 1 
railroads equip their geometry cars with these systems to measure 
undesirable rail cant.
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BMWED Petition: Whether FRA Should Explicitly Require All Persons Fully 
Qualified Under Sec.  213.7, and Whose Territories Are Subject to Sec.  
213.234 Automated Inspections, Be Provided With a Copy of the Exception 
Report, or That a Copy of Such Report Be Made Readily Available to Such 
Persons
    BMWED urges that FRA amend the final rule to require ``exception 
report data to be provided to, or made readily available to, persons 
fully qualified under Sec.  213.7, including track inspectors 
responsible for performing Sec.  213.233 visual track inspection in 
between automated inspection cycles.'' BMWED Petition at 5. To support 
its argument, BMWED cites to other provisions in the CFR that mandate 
focused dissemination and availability of reports. See BWMED Petition 
at 5-6.
    FRA accepts BMWED's proposed amendment to the final rule. The final 
rule states that ``[t]he automated inspection measurement system shall 
produce an exception report containing a systematic listing of all 
exceptions to Sec.  213.109(d)(4), identified so that an appropriate 
person(s) designated as fully qualified under Sec.  213.7 can field-
verify each exception.'' 49 CFR 213.234(e). The final rule requires 
that ``[e]ach exception must be located and field-verified no later 
than 48 hours after the automated inspection'' and ``[a]ll field-
verified exceptions are subject to all the requirements [of part 
213].'' 49 CFR 213.234(e). FRA notes that Sec.  213.234(e) implicitly 
requires that persons fully qualified under Sec.  213.7 and whose 
territories are subject to automated inspection under Sec.  213.234 be 
provided with, or have ready access to a copy of the exception report, 
because without such information being disseminated, Sec.  213.234(e) 
cannot be satisfied. In short, qualified persons under Sec.  213.7 
cannot logically field-verify exceptions found in the exception report 
without access to the exception report. Furthermore, it is in the best 
interest of the railroad to provide all track inspectors in the 
relevant territory with access to the exception report so that problem 
areas can be monitored and corrected.\8\
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    \8\ It is FRA's understanding that most Class 1 railroads (e.g., 
Union Pacific Railroad Company, Burlington Northern Santa Fe 
Railway) already provide access to automated inspection reports to 
49 CFR 213.7 inspectors in a given territory.
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    It was FRA's intent in the final rule that the railroad would 
voluntarily provide all persons fully qualified under Sec.  213.7 with 
a copy of the exception report, so that both a supervisor under Sec.  
213.7(a) and a track inspector under Sec.  213.7(b) would have access 
to the report. It is expected that the designated Sec.  213.7 person(s) 
would then act responsibly upon the information subject to the 
requirements in part 213, once verified, so that appropriate remedial 
action would be taken in a timely manner.
    This issue was raised in the joint comments to the NPRM of the 
American Train Dispatchers Association (ATDA), Brotherhood of 
Locomotive Engineers and Trainmen (BLET), Brotherhood of Maintenance of 
Way Employees Division (BMWED), Brotherhood of Railroad Signalmen 
(BRS), and the United Transportation Union (UTU) (Labor) and addressed 
by FRA in the final rule. Labor representatives recommended that FRA 
mandate that a physical copy of the exception report be given to the 
person that the track owner has designated as being responsible for 
frequency inspections pursuant to Sec.  213.233. In response, FRA 
declined to adopt Labor's recommendation, stating that it ``refuses to 
interfere with a track owner's assignment process.'' 76 FR 18,081 (Apr. 
1, 2011). FRA clarified that it ``agrees that it would be a best 
practice for the track owner to ensure that the person responsible for 
performing the frequency inspections required by Sec.  213.233 be 
provided a copy of the exception report, as all field-verified 
exceptions are subject to all of FRA's Track Safety Standards.'' 76 FR 
18,081 (Apr. 1, 2011).
    FRA intended to convey with its response to Labor's comment that it 
would not direct the manner in which a track owner communicates and 
assigns corrective action to a noncompliant condition among their 
personnel. The final rule requires that an exception report be created, 
but does not explicitly require that the report be given to a 
particular person, as long as a fully-qualified person under Sec.  
213.7 properly field-verifies any exceptions pursuant to the rule. 
Persons designated under Sec.  213.7 must receive or have access to the 
exception report in order to comply with the provisions of the final 
rule. In other words, a designated qualified inspector is required by 
the final rule to receive any noncompliant rail seat deterioration 
reports, whether the reports are made accessible to or are physically 
handed to the person designated under Sec.  213.7, for field-
verification and repairs purposes.
    While FRA addressed Labor's comments in the preamble to the final 
rule, BWMED's Petition modified Labor's recommendation by asking that 
FRA require that individuals performing frequency inspections be 
provided with a copy of the automated inspection report or that a copy 
of the automated inspection report be made readily available. With this 
alteration, FRA believes that BWMED's request becomes less burdensome 
on the railroads. Railroads have an incentive to make such automated 
inspection reports available to track inspectors performing frequency-
based inspections because this practice could ensure compliance with 
the regulations and could prevent worsening track conditions with 
costlier repairs or potential accidents. If inspectors have been 
provided with all of the relevant information, inspectors can better 
monitor problematic areas. Further, as this is a good business 
practice, most Class 1 railroads already make these reports available 
to the relevant inspectors. Given that the benefits of making reports 
available to all inspectors in the territory outweigh the slight cost 
of requiring a railroad to make the report available, which many do 
already, FRA is amending the final rule to explicitly require that 
railroads make such reports available to all relevant Sec.  213.7 
persons. The marginal increase in cost of making the report available 
compared with the added benefit of allowing inspectors to note defects 
earlier justify adding this requirement.
    To clarify FRA's original intent and to promote good industry 
practice, FRA amends Sec.  213.234(e) to require that

[[Page 55823]]

exception reports be provided to or are made available to all persons 
qualified under Sec.  213.7 and whose territories are subject to the 
requirements of Sec.  213.234.
BMWED Petition: Whether FRA Should Adjust the Exception Testing 
Threshold From \1/2\ of an Inch to \3/8\ of an Inch To Compensate for 
the \1/8\ of an Inch Calibration Variance Allowed in Sec.  
213.234(d)(1)
    BMWED asserts that ``Sec.  213.234(d)(1) has the affect [sic] of 
adding up to an additional \1/8\ of an inch to the proposed maximum 
depth of \1/2\ inch rail seat deterioration prescribed under Sec.  
213.109(d)(4).'' BMWED Petition at 2. Thus, BMWED requests that FRA 
``compensate for the \1/8\ inch calibration variance'' by requiring 
``the automated exception report [to] record all `exceptions' of \3/8\ 
of an inch or greater, and that all such exceptions be subject to field 
verification under the provisions of Sec.  213.234(e).'' BMWED Petition 
at 2-3. BMWED contends that because of the \1/8\ of an inch variance 
allowed by Sec.  213.234(d)(1), exceptions may reach up to \5/8\ of an 
inch before automated means would detect them. See BMWED Petition at 5.
    FRA accepts BMWED's recommendation that railroads must flag 
locations identified as \3/8\ of an inch or greater on the automated 
exception report, but FRA declines to require field-verification of 
those areas noted on the report that are less than \1/2\ of an inch. 
This additional notation will serve as an alert to the inspectors of 
potential problem areas to observe. Generally, railroads already note 
locations on automated reports in advance of the \1/2\ of an inch 
violation level. For example, BNSF already flags locations at \3/8\ of 
an inch with an alert. Adding an ``alert'' to an automated exception 
report would be a simple and low-cost modification. For example, Rail 
Profile Measurement System (RPMS) instrumentation on FRA geometry cars 
are set to flag an advisory exception when the angle exceeds four 
degrees of negative or outward rail cant. See 76 FR 18,081 (Apr. 1, 
2011). However, requiring field-verification of locations flagged below 
\1/2\ of an inch would be inappropriate, as it would impose too high of 
a cost without a corresponding benefit to safety.
    FRA estimates that there would be approximately eight times as many 
locations found at \3/8\ of an inch than those found at \1/2\ of an 
inch. This increase would result in eight times as many field-
verifications, and would consequently represent a significant increase 
in the economic burden. Measurement errors are usually equally 
distributed as positive and negative, meaning that having a target of 
\3/8\ of an inch would trigger exceptions that actually measure \1/4\ 
of an inch as often as \1/2\ of an inch. FRA notes that this would 
cause unneeded inspections for such false-positives at a high cost. 
However, there are potential cost savings, as the additional field-
verification may result in the repair of an issue that would have been 
more costly to repair later or could have contributed to an accident. 
BMWED's Petition recommends that FRA adopt something higher than a 
minimum safety standard. If FRA takes violations before the railroad is 
noncompliant, it would be contrary to FRA's enforcement policy and 
would be interfering with the railroad's managerial discretion.
    While railroads astutely demand higher than minimum standards, FRA 
only requires the minimum for safety purposes. A location indicating 
rail seat deterioration of \3/8\ of an inch would likely fall within a 
railroad's maintenance standard to watch or to field-verify, but such 
field-verification will not be mandated by FRA. FRA agrees with BMWED 
that it would be a good practice and thus mandates that automated 
inspection equipment must note all locations indicating rail seat 
deterioration of \3/8\ of an inch and greater on the report, yellow-
flagging, or identifying ``alerts'' for, those areas identified between 
\3/8\ and \1/2\ of an inch, and red-flagging, or identifying ``alarms'' 
for, those areas identified at \1/2\ of an inch and above. However, 
subjecting all areas \3/8\ of an inch and above to field-verification 
would add significant cost burdens without a demonstrated safety 
benefit.
    In light of the preceding discussion, a new paragraph is added to 
Sec.  213.234(e) to require exception reports to note an ``alert'' for 
locations identified between \3/8\ of an inch and \1/2\ of an inch.
AAR Petition: Effective Date of the Rule To Accommodate Railroad 
Training Cycles
    AAR asserts that ``[r]ailroads traditionally concentrate training 
classes for their existing employees in the first half of the year, 
with training materials prepared during the second half of the previous 
year.'' AAR Petition at 7. By postponing the applicability date of the 
formal training provision in Sec.  213.234(h) to July 1, 2012, these 
requirements would comport with the railroads' standard training 
schedule.
    In consideration of these typical railroad training cycles, FRA 
will extend the applicability date of Sec.  213.234 to July 1, 2012. 
Accordingly, FRA amends 49 CFR 213.234(a).

Regulatory Impact and Notices

A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    Prior to issuing the April 1, 2011 final rule, FRA prepared and 
placed in the docket a regulatory analysis addressing the economic 
impact of the final rule. The rule was evaluated in accordance with 
existing policies and procedures and determined to be non-significant 
under both Executive Orders 12866 and 13563 and DOT policies and 
procedures. See 44 FR 11,034; February 26, 1979. For a more detailed 
discussion, see 76 FR 18,082. This response to the petitions for 
reconsideration of the final rule is likewise considered to be non-
significant under both Executive Orders 12866 and 13563 and DOT 
policies and procedures. This regulatory action generally clarifies or 
makes technical amendments to the requirements contained in the final 
rule or allows for greater flexibility in complying with the rule.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (the 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. Prior to issuing the 
April 1, 2011 final rule, FRA prepared and placed in the docket a 
regulatory flexibility analysis which assessed the small entity impact 
by the rule. FRA certified in the final rule that it expects there will 
be no significant economic impact on a substantial number of small 
entities. For a more detailed discussion, see 76 FR 18,082. This 
response to the petitions for reconsideration of the final rule 
generally clarifies the requirements contained in the rule or allows 
for greater flexibility in complying with the rule. Consequently, FRA 
certifies that this regulatory action is not expected to have a 
significant economic impact on a substantial number of small entities.

C. Paperwork Reduction Act

    The information collection requirements in this final rule and 
FRA's response to petitions of reconsideration are being submitted for 
approval to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. The section 
that contains the one new and current information collection 
requirements is noted below, and the estimated burden time to fulfill 
each requirement is as follows:

[[Page 55824]]



----------------------------------------------------------------------------------------------------------------
                                        Respondent          Total annual       Average time per    Total annual
           CFR section                   universe            responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
213.234--Automated Inspection of
 Track Constructed with Concrete
 Crossties:
    --Exception Reports..........  18 Railroads.......  150 reports........  8 hours............           1,200
    --Field Verified Exception     18 Railroads.......  150 field            2 hours............             300
     Reports.                                            verifications.
    --Provision/Availability of    18 Railroads.......  150 electronic       12 minutes.........              30
     Exception Reports to                                reports.
     Designated Persons (New).
    --Records of Inspection Data   18 Railroads.......  150 records........  30 minutes.........              75
     and Exception Records.
    --Procedures for Maintaining   18 Railroads.......  18 procedures......  4 hours............              72
     Data Integrity Collected by
     Measurement System.
    --Training of Employees in     18 Railroads.......  2,000 trained        8 hours............          16,000
     Handling Seat Deterioration.                        employees.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
information collection submission sent to OMB, please contact Mr. 
Robert Brogan at 202-493-6292 or Ms. Kimberly Toone at 202-493-6132 or 
via e-mail at the following addresses: [email protected]; 
[email protected].
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Office of Information and Regulatory Affairs, 
725 17th St., NW., Washington, DC 20503, attn: FRA Desk Officer. 
Comments may also be sent via e-mail to the Office of Management and 
Budget at the following address: [email protected], mail 
to: [email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in response to the petitions of 
reconsideration of this final rule between 30 and 60 days after 
publication of this document in the Federal Register. Therefore, a 
comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication.
    FRA cannot impose a penalty on persons for violating information 
collection requirements which do not display a current OMB control 
number, if required. FRA intends to obtain current OMB control numbers 
for any new information collection requirements resulting from this 
rulemaking action prior to the effective date of this 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 action in accordance with its ``Procedures 
for Considering Environmental Impacts'' (FRA's Procedures) (64 FR 
28,545, 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 28,547, 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 final rule that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this 
regulation is not a major Federal action significantly affecting the 
quality of the human environment.

E. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43,255, Aug. 10, 
1999), requires FRA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, the agency may not issue a regulation with 
federalism implications that imposes substantial direct compliance 
costs and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments or the agency consults 
with State and local government officials early in the process of 
developing the regulation. Where a regulation has federalism 
implications and preempts State law, the agency seeks to consult with 
State and local officials in the process of developing the regulation.
    As stated in the preamble to the final rule, FRA has analyzed this 
final rule in accordance with the principles and criteria contained in 
Executive Order 13132. FRA has determined that this final rule has no 
federalism implications, other than the possible preemption of State 
laws under Sec. 20106. See 76 FR 18,083. This response to the petitions 
for reconsideration of the final rule generally clarifies the 
requirements contained in the rule or allows for greater flexibility in 
complying with the rule.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to Sec. 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).'' Sec. 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 $140,800,000] 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 response to the petitions for 
reconsideration of the

[[Page 55825]]

final rule will not result in the expenditure, in the aggregate, of 
$140,800,000 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 28,355 (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 response to petitions for reconsideration of the final rule in 
accordance with Executive Order 13211, and has determined that this 
regulatory action is not a ``significant energy action'' within the 
meaning of the Executive Order.

H. Administrative Procedure Act

    Under the Administrative Procedure Act, an independent Notice of 
Proposed Rulemaking (NPRM) is not required when an agency, for good 
cause, finds ``that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest.'' 5 
U.S.C. 553(b)(3)(B). FRA believes that it is making only technical 
changes, clarifications, and minor amendments in response to petitions 
for reconsideration of FRA's final rule. For this reason, and because 
FRA believes that it has provided sufficient opportunities for notice 
and comment through the NPRM, the final rule, and the petitions for 
reconsideration which were all contained in the public docket, 
publishing an independent NPRM is unnecessary.

I. 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 Final Rule

    In consideration of the foregoing, FRA amends part 213 of chapter 
II, subtitle B of title 49, Code of Federal Regulations, as follows:

PART 213--[AMENDED]

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

    Authority:  49 U.S.C. 20102-20114 and 20142; Sec. 403, Div. A, 
Public Law 110-432, 122 Stat. 4885; 28 U.S.C. 2461, note; and 49 CFR 
1.49.


0
2. Section 213.234 is amended by revising the first sentence of 
paragraph (a), and revising paragraphs (d), (e), and (g), to read as 
follows:


Sec.  213.234  Automated inspection of track constructed with concrete 
crossties.

    (a) General. Except for track described in paragraph (c) of this 
section, the provisions in this section are applicable on and after 
July 1, 2012. * * *
* * * * *
    (d) Performance standard for automated inspection measurement 
system. The automated inspection measurement system must be capable of 
indicating and processing rail seat deterioration requirements that 
specify the following:
    (1) An accuracy, to within \1/8\ of an inch;
    (2) A distance-based sampling interval, which shall not exceed five 
feet; and
    (3) Calibration procedures and parameters assigned to the system, 
which assure that indicated and recorded values accurately represent 
rail seat deterioration.
    (e) Exception reports to be produced by system; duty to field-
verify exceptions. The automated inspection measurement system shall 
produce an exception report containing a systematic listing of all 
exceptions to Sec.  213.109(d)(4), identified so that an appropriate 
person(s) designated as fully qualified under Sec.  213.7 can field-
verify each exception.
    (1) Exception reports must be provided to or be made available to 
all persons designated as fully qualified under Sec.  213.7 and whose 
territories are subject to the requirements of Sec.  213.234.
    (2) Each exception must be located and field-verified no later than 
48 hours after the automated inspection.
    (3) All field-verified exceptions are subject to all the 
requirements of this part.
    (4) Exception reports must note areas identified between \3/8\ of 
an inch and \1/2\ of an inch as an ``alert.''
* * * * *
    (g) Procedures for integrity of data. The track owner shall 
institute the necessary procedures for maintaining the integrity of the 
data collected by the measurement system. At a minimum, the track owner 
shall do the following:
    (1) Maintain and make available to FRA documented calibration 
procedures of the measurement system that, at a minimum, specify an 
instrument verification procedure that ensures correlation between 
measurements made on the ground and those recorded by the 
instrumentation; and
    (2) Maintain each instrument used for determining compliance with 
this section such that it accurately provides an indication of the 
depth of rail seat deterioration in accordance with paragraph (d)(1) of 
this section.
* * * * *

    Issued in Washington, DC, on September 6, 2011.
Joseph C. Szabo,
Administrator.
[FR Doc. 2011-23133 Filed 9-8-11; 8:45 am]
BILLING CODE 4910-06-P