[Federal Register Volume 79, Number 16 (Friday, January 24, 2014)]
[Rules and Regulations]
[Pages 4234-4260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-01387]



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Vol. 79

Friday,

No. 16

January 24, 2014

Part II





Department of Transportation





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Federal Railroad Administration





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49 CFR Part 213





Track Safety Standards; Improving Rail Integrity; Final Rule

  Federal Register / Vol. 79 , No. 16 / Friday, January 24, 2014 / 
Rules and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

[Docket No. FRA-2011-0058, Notice No. 2]
RIN 2130-AC28


Track Safety Standards; Improving Rail Integrity

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

ACTION: Final rule.

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SUMMARY: FRA is amending the Federal Track Safety Standards to promote 
the safety of railroad operations by enhancing rail flaw detection 
processes. In particular, FRA is establishing minimum qualification 
requirements for rail flaw detection equipment operators, as well as 
revising requirements for effective rail inspection frequencies, rail 
flaw remedial actions, and rail inspection records. In addition, FRA is 
removing regulatory requirements concerning joint bar fracture 
reporting. This final rule is intended to implement section 403 of the 
Rail Safety Improvement Act of 2008 (RSIA).

DATES: This final rule is effective March 25, 2014. Petitions for 
reconsideration must be received on or before March 25, 2014. Comments 
in response to petitions for reconsideration must be received on or 
before May 9, 2014.

ADDRESSES: Petitions for reconsideration and comments on petitions for 
reconsideration: Any petitions for reconsideration or comments on 
petitions for reconsideration related to this Docket No. FRA-2011-0058, 
Notice No. 2, 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 any petitions for reconsideration or 
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 
any petitions for reconsideration 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: Carlo Patrick, Staff Director, Office 
of Railroad Safety, FRA, 1200 New Jersey Avenue SE., Washington, DC 
20590 (telephone: 202-493-6399); or Elisabeth Galotto, Trial Attorney, 
Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., Washington, 
DC 20950 (telephone: 202-493-0270).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Rail Integrity Overview
    A. Derailment in 2001 Near Nodaway, Iowa
    B. Derailment in 2006 Near New Brighton, Pennsylvania
    C. Office of Inspector General Report: Enhancing the Federal 
Railroad Administration's Oversight of Track Safety Inspections
    D. General Factual Background on Rail Integrity
    E. Statutory Mandate To Conduct This Rulemaking
III. Overview of FRA's Railroad Safety Advisory Committee (RSAC)
IV. RSAC Track Safety Standards Working Group
V. Development of the NPRM and Final Rule
    A. Development of the NPRM
    B. Development of the Final Rule
VI. Track Inspection Time Study
VII. Section-by-Section Analysis
VIII. Regulatory Impact and Notices
    A. Executive Orders 12866 and 13563 and DOT Regulatory Policies 
and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Environmental Impact
    E. Federalism Implications
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Privacy Act Statement

I. Executive Summary

    Having considered the public comments in response to FRA's October 
19, 2012, proposed rule on Track Safety Standards, Improving Rail 
Integrity, see 77 FR 64249, FRA issues this rule amending the Track 
Safety Standards, 49 CFR Part 213. This final rule contains 
requirements related to the following subject areas: defective rails, 
the inspection of rail, qualified operators, and inspection records. 
The final rule also addresses the mandate of section 403 of the RSIA, 
and removes the joint bar fracture reporting requirement. The following 
is a brief overview of the final rule organized by the subject area:
     Defective Rails
    The final rule provides track owners with a four-hour period in 
which to verify that certain, suspected defects exists in a rail 
section. The primary purpose of the four-hour, deferred-verification 
option is to assist track owners in improving detector car utilization 
and production, increase the opportunity to detect more serious 
defects, and help ensure that all rail that the detector car is 
intended to travel over while in service is inspected. Additionally, 
the rule revises the remedial action table in areas such as transverse 
defects, longitudinal weld defects, and crushed head defects.
     Inspection of Rail
    Formerly, Class 4 and 5 track, as well as Class 3 track over which 
passenger trains operate, were required to be tested for internal rail 
defects at least once every accumulation of 40 million gross tons (mgt) 
or once a year (whichever time was shorter). Class 3 track over which 
passenger trains do not operate was required to be tested at least once 
every accumulation of 30 mgt or once per year (whichever time was 
longer). When these inspection requirements were drafted, track owners 
were already initiating and implementing the development of a 
performance-based risk management concept for determination of rail 
inspection frequency, which is often referred to as the ``self-adaptive 
scheduling method.'' Under this method, inspection frequency is 
established annually based on several factors, including the total 
detected defect rate per test, the rate of service failures between 
tests, and the accumulated tonnage between tests. Track owners then 
utilize this information to generate and maintain a service failure 
performance target.
    This final rule codifies standard industry good practices. The 
final rule requires track owners to maintain service failure rates of 
no more than 0.1 service failure per year per mile of track for all 
Class 4 and 5 track; no more than 0.09 service failure per year per 
mile of track for all Class 3, 4, and 5 track that carries regularly-
scheduled passenger trains or is a hazardous materials route; and no 
more than 0.08 service failure per year per mile of track for all Class

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3, 4, and 5 track that carries regularly-scheduled passenger trains and 
is a hazardous materials route.
    The final rule also requires that internal rail inspections on 
Class 4 and 5 track, and Class 3 track with regularly-scheduled 
passenger trains or that is a hazardous materials route, not exceed a 
time interval of 370 days between inspections or a tonnage interval of 
30 mgt between inspections, whichever is shorter. Internal rail 
inspections on Class 3 track without regularly-scheduled passenger 
trains and that is not a hazardous materials route must be inspected at 
least once each calendar year, with no more than 18 months between 
inspections, or at least once every 30 mgt, whichever interval is 
longer, but in no case may inspections be more than 5 years apart.

 Qualified Operators

    The final rule adds a new provision requiring that each provider of 
rail flaw detection have a documented training program to ensure that a 
flaw detection equipment operator is qualified to operate each of the 
various types of equipment utilized in the industry for which he or she 
is assigned to operate. For a rail flaw detection test to be valid, the 
test must be performed by a qualified operator. Qualified operators are 
in turn subject to minimum training, evaluation, and documentation 
requirements to help ensure the validity of a rail flaw detection test. 
It is the responsibility of the track owner to reasonably ensure that 
any provider of rail flaw detection is in compliance with these 
training and qualification requirements.

 Removing the Requirement of a Joint Bar Fracture Report

    The final rule removes the requirement that track owners generate a 
Joint Bar Fracture Report (Fracture Report) for every cracked or broken 
continuous welded rail (CWR) joint bar that the track owner discovers 
during the course of an inspection. The reports were providing little, 
useful research data to prevent future failures of CWR joint bars. 
Instead, a new study will be conducted to determine what conditions 
lead to CWR joint bar failures and include a description of the overall 
condition of the track in the vicinity of the failed joint(s), track 
geometry (gage, alignment, profile, cross-level) at the joint location, 
and the maintenance history at the joint location, along with 
photographic evidence of the failed joint.

 Inspection Records

    The final rule ensures that a railroad's rail inspection records 
include the date of inspection, track identification and milepost for 
each location tested, type of defect found and size if not removed 
prior to traffic, and initial remedial action as required by Sec.  
213.113. The final rule also requires that when tracks do not receive a 
valid inspection they are documented in the railroad's rail inspection 
records.

 Section 403 of the RSIA

    On October 16, 2008, the RSIA (Pub. L. 110-432, Division A) was 
enacted. Section 403(a) of the RSIA required the Secretary of 
Transportation (Secretary) to conduct a study of track issues, known as 
the Track Inspection Time Study (Study), to determine whether track 
inspection intervals needed to be amended; whether track remedial 
action requirements needed to be amended; whether different track 
inspection and repair priorities and methods were required; and whether 
the speed of track inspection vehicles should be regulated. As part of 
the Study, section 403(b) of the RSIA instructed the Secretary to 
consider ``the most current rail flaw, rail defect growth, rail 
fatigue, and other relevant track- or rail-related research and 
studies,'' as well as new inspection technologies, and National 
Transportation Safety Board (NTSB) and FRA accident information. The 
Study was completed and presented to Congress on May 2, 2011. Section 
403(c) of the RSIA further provided that FRA prescribe regulations 
based on the results of the Study two years after its completion.
    FRA tasked the Railroad Safety Advisory Committee (RSAC) to address 
the recommendations of the Study. After several meetings, the 
Association of American Railroads (AAR) together with the Brotherhood 
of Maintenance of Way Employes Division (BMWED) proposed that FRA had 
met its obligations under section 403(c) of the RSIA, specifically 
through its rulemakings on vehicle/track interaction, concrete 
crossties, and the proposals contained in the NPRM related to rail 
integrity. They also stated that no additional action on the RSAC task 
was necessary and recommended that the task be closed. FRA took AAR's 
and BMWED's proposal under advisement and conducted its own analysis as 
to the fulfillment of the mandates under section 403. FRA concluded 
that these statutory obligations were being fulfilled. Subsequently, 
the full RSAC concurred that FRA's rulemakings were sufficiently 
addressing the statutorily-mandated topics and that no additional work 
by the RSAC was necessary.

 Economic Impact

    The bulk of the final rule revises FRA's Track Safety Standards by 
codifying current industry good practices. In analyzing the economic 
impacts of the final rule, FRA does not believe that any existing 
operation will be adversely affected by these changes, nor does FRA 
believe that the changes will induce any material costs.
    Through its regulatory evaluation, FRA explains what the likely 
benefits for this final rule are and provides a cost-benefit analysis. 
FRA anticipates that the final rule will enhance the Track Safety 
Standards by allocating more time to rail inspections, increasing the 
opportunity to detect more serious defects sooner, providing assurance 
that qualified operators are inspecting the rail, and causing 
inspection records to be updated with more useful information. The main 
benefit associated with this final rule is derived from granting track 
owners a four-hour window to verify certain defects found in a rail 
inspection. Without the additional time to verify these defects, track 
owners must stop their inspections anytime a suspect defect is 
identified, to avoid civil penalty liability, and then resume their 
inspections after the defect is verified. The defects subject to the 
deferred verification allowance are usually considered less likely to 
cause immediate rail failure, and require less restrictive remedial 
action. The additional time permits track owners to avoid the cost of 
paying their internal inspection crews or renting a rail flaw detector 
car an additional half day, saving the industry $8,400 per day. FRA 
believes the value of the anticipated benefits easily justifies the 
cost of implementing the final rule.
    The final rule's total net benefits are estimated to be about $62.9 
million over a 20-year period. The benefits are approximately $48.1 
million, discounted at a 3-percent rate, or about $35.5 million, 
discounted at a 7-percent rate. In the final rule, the estimated 
benefit showed an overall increase of 2.6% compared to the estimates 
provided in the NPRM. Part of this increase is due to the application 
of the Congressional Budget Office (CBO) real wage forecast which 
adjusts the annual growth rate by 1.07 percent annually. FRA also 
determined that the implementation year would be 2014; therefore, all 
wages were adjusted accordingly. The change in the implementation year 
accounts for the remainder of the increased benefits.

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FRA believes that such improvements will more than likely result from 
the implementation of the final rule by the railroad industry.

 II. Rail Integrity Overview

A. Derailment in 2001 Near Nodaway, Iowa

    On March 17, 2001, the California Zephyr, a National Railroad 
Passenger Corporation (Amtrak) passenger train carrying 257 passengers 
and crew members, derailed near Nodaway, Iowa. According to the NTSB, 
the train's sixteen cars decoupled from its two locomotives and eleven 
cars went off the rails. Seventy-eight people were injured and one 
person died from the accident. See NTSB/RAB-02-01.
    The NTSB discovered a broken rail at the point of derailment. The 
broken pieces of rail were reassembled at the scene, and it was 
determined that they came from a 15\1/2\-foot section of rail that had 
been installed as replacement rail, or ``plug rail,'' at this location 
in February 2001. The replacement had been made because, during a 
routine scan of the existing rail on February 13, 2001, the Burlington 
Northern and Santa Fe Railway (now BNSF Railway Company or BNSF) 
discovered internal defects that could possibly hinder the rail's 
effectiveness. A short section of the continuous welded rail that 
contained the defects was removed, and a piece of replacement rail was 
inserted. However, the plug rail did not receive an ultrasonic 
inspection before or after installation.
    During the course of the accident investigation, the NTSB could not 
reliably determine the source of the plug rail. While differing 
accounts were given concerning the origin of the rail prior to its 
installation in the track, the replacement rail would most likely have 
been rail which was removed from another track location for reuse. 
Analysis of the rail found that the rail failed due to fatigue 
initiating from cracks associated with the precipitation of internal 
hydrogen. If the rail had been ultrasonically inspected prior to its 
reuse, it is likely that the defects could have been identified and 
that section of rail might not have been used as plug rail.
    As a result of its investigation of the Nodaway, Iowa, railroad 
accident, the NTSB recommended that FRA require railroads to conduct 
ultrasonic or other appropriate inspections to ensure that rail used to 
replace defective segments of existing rail is free from internal 
defects. See NTSB Recommendation R-02-5.

B. Derailment in 2006 Near New Brighton, Pennsylvania

    On October 20, 2006, Norfolk Southern Railway Company (NS) train 
68QB119 derailed while crossing the Beaver River railroad bridge in New 
Brighton, Pennsylvania. The train was pulling eighty-three tank cars 
loaded with denatured ethanol, a flammable liquid. Twenty-three of the 
tank cars derailed near the east end of the bridge, causing several of 
the cars to fall into the Beaver River. Twenty of the derailed cars 
released their loads of ethanol, which subsequently ignited and burned 
for forty-eight hours. Some of the unburned ethanol liquid was released 
into the river and the surrounding soil. Homes and businesses within a 
seven-block area of New Brighton and in an area adjacent to the 
accident had to be evacuated for days. While no injuries or fatalities 
resulted from the accident, NS estimated economic and environmental 
damages to be $5.8 million. See NTSB/RAB-08-9 through -12. The NTSB 
determined that the probable cause of the derailment was an undetected 
internal rail defect identified to be a detail fracture. The NTSB also 
noted that insufficient regulation regarding internal rail inspection 
may have contributed to the accident.
    This accident demonstrated the potential for rail failure with 
subsequent derailment if a railroad's internal rail defect detection 
process fails to detect an internal rail flaw. This accident also 
indicated a need for adequate requirements that will ensure rail 
inspection and maintenance programs identify and remove rail with 
internal defects before they reach critical size and result in 
catastrophic rail failures.

C. Office of Inspector General Report: Enhancing the Federal Railroad 
Administration's Oversight of Track Safety Inspections

    On February 24, 2009, the DOT's Office of Inspector General (OIG) 
issued a report presenting the results of its audit of FRA's oversight 
of track-related safety issues, and making two findings. First, the OIG 
found that FRA's safety regulations for internal rail flaw testing did 
not require the railroads to report the specific track locations, such 
as milepost numbers or track miles that were tested during these types 
of inspections. Second, the OIG found that FRA's inspection data 
systems did not provide adequate information for determining the extent 
to which FRA's track inspectors have reviewed the railroads' records 
for internal rail flaw testing and visual track inspections to assess 
compliance with safety regulations. The OIG recommended that FRA revise 
its track safety regulations for internal rail flaw testing to require 
railroads to report track locations covered during internal rail flaw 
testing, and that FRA develop specific inspection activity codes for 
FRA inspectors to use to report on whether the record reviews FRA 
inspectors conduct were for internal rail flaw testing or visual track 
inspections. Enhancing the Federal Railroad Administration's Oversight 
of Track Safety Inspections, Department of Transportation, Office of 
Inspector General, CR-2009-038, February 24, 2009. This report is 
available on the OIG's public Web site at: http://www.oig.dot.gov/sites/dot/files/pdfdocs/Signed_Final_Track_Safety_Report_02-24-09.pdf.

D. General Factual Background on Rail Integrity \1\

    The single most important material asset to the railroad industry 
is its rail infrastructure, and historically the primary concern of 
railroad companies has been the probability of rail flaw development, 
broken rails, and subsequent derailments. This has resulted in 
railroads improving their rail maintenance practices, purchasing more 
wear-resistant rail, improving flaw-detection technologies, and 
increasing rail inspection frequencies in an effort to prevent rail 
defect development. The direct cost of an undetected rail failure is 
the difference between the cost of replacing the rail failure on an 
emergency basis, and the cost of the organized replacement of detected 
defects. However, a rail defect that goes undetected and results in a 
train derailment can cause considerable, additional costs such as 
excessive service interruption, extensive traffic rerouting, 
environmental damage, and even potential injury and death.
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    \1\ This section is primarily based on information from two 
sources: Progress in Rail Integrity Research, DOT/FRA/ORD-01/18, 
D.Y. Jeong, 2001; and I. H. H. A. Guidelines to Best Practices for 
Heavy Haul Railway Operations; Infrastructure Construction and 
Maintenance Issues, Section 4.3.1 Rail Defect Detection and 
Technologies, Carlo M. Patrick, R. Mark Havira, Gregory A. Garcia, 
Library of Congress Control No. 2009926418, 2009.
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    To maximize the service life of rail, railroads must accept a 
certain rate of defect development. This results in railroads relying 
on regular rail inspection cycles, and strategically renewing rail that 
is showing obvious evidence of fatigue. The development of internal 
rail defects is an inevitable consequence of the accumulation and 
effects of fatigue under repeated loading. The challenge for the 
railroad

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industry is to avoid the occurrence of rail service failure due to the 
presence of an undetected defect. Rail service failures are expensive 
to repair and can lead to costly service disruptions and possibly 
derailments.
    The effectiveness of a rail inspection program depends on the test 
equipment being properly designed and capable of reliably detecting 
rail defects of a certain size and orientation, while also ensuring 
that the test frequencies correspond to the growth rate of critical 
defects. The objective of a rail inspection program is to reduce the 
annual costs and consequences resulting from broken rails, which 
involve several variables.
    The predominant factor that determines the risk of rail failure is 
the rate of development of internal flaws. Internal rail flaws have a 
period of origin and a period often referred to as slow crack growth 
life. The risk is introduced when internal flaws remain undetected 
during their growth to a critical size. This occurs when the period in 
which the crack develops to a detectable size is significantly shorter 
than the required test interval.
    In practice, the growth rate of rail defects is considered highly 
inconsistent and unpredictable. Rail flaw detection in conjunction with 
railroad operations often presents some specific problems. This is a 
result of high traffic volumes that load the rail and accelerate defect 
growth, while at the same time decreasing the time available for rail 
inspection. Excessive wheel loading can result in stresses to the rail 
that can increase defect growth rates. Consequently, heavy axle loading 
can lead to rail surface fatigue that may prevent detection of an 
underlying rail flaw by the test equipment. Most railroads attempt to 
control risk by monitoring test reliability through an evaluation 
process of fatigue service failures that occur soon after testing, and 
by comparing the ratio of service failures or broken rails to detected 
rail defects.
    The tonnage required to influence defect development is also 
considered difficult to predict; however, once initiated, transverse 
defect development is influenced by tonnage. Rapid defect growth rates 
can also be associated with rail where high-tensile residual stresses 
are present in the railhead and in CWR in lower temperature ranges 
where the rail is in high longitudinal tension.
    It is common for railroads to control risk by monitoring the 
occurrence of both detected and service defects. For railroads in the 
U.S., risk is typically evaluated to warrant adjustment of test 
frequencies. The railroads attempt to control the potential of service 
failure by testing more frequently.
    In conducting rail integrity research, the general approach is to 
focus on confirming whether rail defects can be detected by periodic 
inspection before they grow large enough to cause a rail failure. In 
the context of rails, damage tolerance is the capability of the rail to 
resist failure and continue to perform safely with damage (i.e., rail 
defects). This implies that a rail containing a crack or defect is 
weaker than a normal rail, and that the rail's strength decreases as 
the defect grows. As growth continues, the applied stresses will 
eventually exceed the rail's strength and cause a failure. Such 
information can be used to establish guidelines for determining the 
appropriate frequency of rail inspections to mitigate the risk of rail 
failure from undetected defects.
    Current detection methods that are performed in the railroad 
industry utilize various types of processes with human involvement in 
the interpretation of the test data. These include the:
     Portable test process, which consists of an operator 
pushing a test device over the rail at a walking pace while visually 
interpreting the test data;
     Start/stop process, where a vehicle-based, rail flaw 
detection system tests at a slow speed (normally not exceeding 20 mph) 
gathering data that is presented to the operator on a test monitor for 
interpretation;
     Chase car process, which consists of a lead test vehicle 
performing the flaw detection process in advance of a verification 
chase car; and
     Continuous test process, which consists of operating a 
high-speed, vehicle-based test system non-stop along a designated 
route, analyzing the test data at a centralized location, and 
subsequently verifying suspect defect locations.
    The main technologies utilized for non-destructive testing on U.S. 
railroads are the ultrasonic and induction methods. Ultrasonic 
technology is the primary technology used, and induction technology is 
currently used as a complementary system. As with any non-destructive 
test method, these technologies are susceptible to physical limitations 
that allow poor rail head surface conditions to negatively influence 
the detection of rail flaws. The predominant types of these poor, rail 
head surface conditions are shells, engine driver burns, spalling, 
flaking, corrugation, and head checking. Other conditions that are 
encountered include heavy lubrication or debris on the rail head.
    Induction testing requires the introduction of a high-level, direct 
current into the top of the rail and establishing a magnetic field 
around the rail head. An induction sensor unit is then passed through 
the magnetic field. The presence of a rail flaw will result in a 
distortion of the current flow, and it is this distortion of the 
magnetic field that is detected by the search unit.
    Ultrasonics can be briefly described as sound waves, or vibrations, 
that propagate at a frequency that is above the range of human hearing, 
normally above a range of 20,000 Hz or cycles per second. The range 
normally utilized during current flaw detection operations is 2.25 MHz 
(million cycles per second) to 5.0 MHz. Ultrasonic waves are generated 
into the rail by piezo-electric transducers that can be placed at 
various angles with respect to the rail surface. The ultrasonic waves 
produced by these transducers normally scan the entire rail head and 
web, as well as the portion of the base directly beneath the web. 
Internal rail defects represent a discontinuity in the steel material 
that constitutes the rail. This discontinuity acts as a reflector to 
the ultrasonic waves, resulting in a portion of the wave being 
reflected back to the respective transducer. These conditions include 
rail head surface conditions, internal or visible rail flaws, weld 
upset/finish, and known reflectors within the rail geometry such as 
drillings or rail ends. The information is then processed by the test 
system and recorded in the permanent test data record. Interpretation 
of the reflected signal is the responsibility of the test system 
operator.
    Railroads have always inspected track visually to detect rail 
failures, and have been using crack-detection devices in rail-test 
vehicles since the 1930s. Meanwhile, the railroad industry has trended 
towards increased traffic density and average axle loads. Current rail 
integrity research recognizes and addresses the need to review and 
update rail inspection strategies and preventive measures. This 
includes the frequency interval of rail inspection, remedial action for 
identified rail defects, and improvements to the performance of the 
detection process.
    FRA has sponsored railroad safety research for several decades. One 
part of this research program is focused on rail integrity. The general 
objectives of FRA rail integrity research have been to improve railroad 
safety by reducing rail failures and the associated risks of train 
derailment, and to do so more efficiently through new maintenance 
practices that increase rail service life. The studies sponsored by FRA 
focus on

[[Page 4238]]

analysis of rail defects; residual stresses in rail; strategies for 
rail testing; and other areas related to rail integrity, which include 
advances in nondestructive inspection techniques and feasibility of 
advanced materials for rail, rail lubrication, rail grinding, and wear. 
Moreover, rail integrity research is an ongoing effort, and will 
continue as annual tonnages and average axle loads increase on the 
nation's railroads.
    Due to the limitations of current technology to detect internal 
rail flaws beneath surface conditions and in the base flange area, 
FRA's research has been focusing on other rail flaw detection 
technologies. One laser-based, ultrasonic rail defect detection 
prototype, which is being developed by the University of California-San 
Diego under an FRA Office of Research and Development grant, has 
produced encouraging results in ongoing field testing. The project goal 
is to develop a rail defect detection system that provides better 
defect detection reliability at a higher inspection speed than is 
currently achievable. The primary target is the detection of transverse 
defects in the rail head. The method is based on ultrasonic guided 
waves, which can travel below surface discontinuities, hence minimizing 
the masking effect of transverse cracks by surface shelling. The 
inspection speed can also be improved greatly because guided waves run 
long distances before attenuating.
    Non-destructive test systems perform optimally on perfect test 
specimens. However, rail in track is affected by repeated wheel loading 
that results in the plastic deformation of the rail running surface, 
which can create undesirable surface conditions as described 
previously. These conditions can influence the development of rail 
flaws. These conditions can also affect the technologies currently 
utilized for flaw detection by limiting their detection capabilities. 
Therefore, it is important that emerging technology development 
continue, in an effort to alleviate the impact of adverse rail surface 
conditions.

E. Statutory Mandate To Conduct This Rulemaking

    The first Federal Track Safety Standards (Standards) were published 
on October 20, 1971, following the enactment of the Federal Railroad 
Safety Act of 1970, Public Law 91-458, 84 Stat. 971 (October 16, 1970), 
in which Congress granted to the Secretary comprehensive authority over 
``all areas of railroad safety.'' See 36 FR 20336. FRA envisioned the 
new Standards to be an evolving set of safety requirements subject to 
continuous revision allowing the regulations to keep pace with industry 
innovations and agency research and development. The most comprehensive 
revision of the Standards resulted from the Rail Safety Enforcement and 
Review Act of 1992, Public Law 102-365, 106 Stat. 972 (Sept. 3, 1992), 
later amended by the Federal Railroad Safety Authorization Act of 1994, 
Public Law 103-440, 108 Stat. 4615 (Nov. 2, 1994). The amended statute 
is codified at 49 U.S.C. 20142 and required the Secretary to review and 
then revise the Standards, which are contained in 49 CFR part 213. The 
Secretary has delegated such statutory responsibilities to the 
Administrator of FRA. See 49 CFR 1.89. FRA carried out this review on 
behalf of the Secretary, which resulted in FRA issuing a final rule 
amending the Standards in 1998. See 63 FR 34029, June 22, 1998; 63 FR 
54078, Oct. 8, 1998.
    Pursuant to 49 U.S.C. 20103, the Secretary may prescribe 
regulations as necessary in any area of railroad safety. As described 
in the next section, FRA began its examination of rail integrity issues 
through RSAC on October 27, 2007. Then, on October 16, 2008, the RSIA 
was enacted. As previously noted, section 403(a) of the RSIA required 
the Secretary to conduct a study of track issues. In doing so, section 
403(b) of the RSIA required the Secretary to consider ``the most 
current rail flaw, rail defect growth, rail fatigue, and other relevant 
track- or rail-related research and studies.'' The Study was completed 
and submitted to Congress on May 2, 2011. Section 403(c) of the RSIA 
also required the Secretary to promulgate regulations based on the 
results of the Study. As delegated by the Secretary, see 49 CFR 1.89, 
FRA utilized its advisory committee, RSAC, to help develop the 
information necessary to fulfill the RSIA's mandates in this area.
    FRA notes that section 403 of the RSIA contains one additional 
mandate, which FRA has already fulfilled, promulgating regulations for 
concrete crossties. On April 1, 2011, FRA published a final rule on 
concrete crosstie regulations per this mandate in section 403(d). That 
final rule specifies 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 18073. FRA received two petitions for reconsideration in response 
to that final rule, and responded to them by final rule published on 
September 9, 2011. See 76 FR 55819.

III. Overview of FRA's Railroad Safety Advisory Committee (RSAC)

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

AAR;
American Association of Private Railroad Car Owners;
American Association of State Highway and 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;
Amtrak;
Association of Railway Museums (ARM);
Association of State Rail Safety Managers (ASRSM);
BMWED;
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Railroad Signalmen (BRS);
Chlorine Institute;
Federal Transit Administration;*
Fertilizer Institute;
High Speed Ground Transportation Association;
Institute of Makers of Explosives;
International Association of Machinists and Aerospace Workers;
International Brotherhood of Electrical Workers;
Labor Council for Latin American Advancement;*
League of Railway Industry Women;*
National Association of Railroad Passengers;
National Association of Railway Business Women;*
National Conference of Firemen & Oilers;
National Railroad Construction and Maintenance Association;
NTSB;*
Railway Supply Institute;
Safe Travel America;
Secretaria de Comunicaciones y Transporte;*
Sheet Metal Workers International Association;
Tourist Railway Association Inc. (TRAIN);
Transport Canada;*
Transport Workers Union of America;
Transportation Communications International Union/BRC;
Transportation Security Administration; and
United Transportation Union (UTU).

    *Indicates associate, non-voting membership.

    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If the 
task is accepted, RSAC establishes a working group that

[[Page 4239]]

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 a 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 the Administrator of FRA. FRA 
then determines what action to take on the recommendation. Because FRA 
staff members 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 a recommended 
rule achieves the agency's regulatory goals, 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. However, to the 
maximum extent practicable, FRA utilizes RSAC to provide consensus 
recommendations with respect to both proposed and final agency action. 
If RSAC is unable to reach consensus on a recommendation for action, 
the task is withdrawn and FRA determines the best course of action.

IV. RSAC Track Safety Standards Working Group

    The Track Safety Standards Working Group (Working Group) was formed 
on February 22, 2006. On October 27, 2007, the Working Group formed two 
subcommittees: the Rail Integrity Task Force (RITF) and the Concrete 
Crosstie Task Force. Principally in response to NTSB recommendation R-
02-05,\2\ the RITF was tasked to review the controls applied to the 
reuse of plug rail and ensure a common understanding within the 
regulated community concerning requirements for internal rail flaw 
inspections.
---------------------------------------------------------------------------

    \2\ After the Nodaway accident, the NTSB recommended that FRA 
``[r]equire railroads to conduct ultrasonic or other appropriate 
inspections to ensure that rail used to replace defective segments 
of existing rail is free from internal defects.'' NTSB Safety 
Recommendation R-02-5, dated March 5, 2002.
---------------------------------------------------------------------------

    However, after the New Brighton accident, and in response to NTSB 
recommendations R-08-9, R-08-10, and R-08-11,\3\ the RITF was given a 
second task on September 10, 2008, which directed the group to do the 
following: (1) Evaluate factors that can and should be included in 
determining the frequency of internal rail flaw testing and develop a 
methodology for taking those factors into consideration with respect to 
mandatory testing intervals; (2) determine whether and how the quality 
and consistency of internal rail flaw testing can be improved; (3) 
determine whether adjustments to current remedial action criteria are 
warranted; and (4) evaluate the effect of rail head wear, surface 
conditions and other relevant factors on the acquisition and 
interpretation of internal rail flaw test results.
---------------------------------------------------------------------------

    \3\ After the New Brighton accident, the NTSB issued three 
additional safety recommendations dated May 22, 2008: (1) FRA should 
``[r]eview all railroads' internal rail defect detection and require 
changes to those procedures as necessary to eliminate exception to 
the requirement for an uninterrupted, continuous search for rail 
defects.'' R-08-9; (2) FRA should ``[r]equire railroads to develop 
rail inspection and maintenance programs based on damage-tolerance 
principles, and approve those programs. Include in the requirement 
that railroads demonstrate how their programs will identify and 
remove internal defects before they reach critical size and result 
in catastrophic rail failures. Each program should take into 
account, at a minimum, accumulated tonnage, track geometry, rail 
surface conditions, rail head wear, rail steel specifications, track 
support, residual stresses in the rail, rail defect growth rates, 
and temperature differentials.'' R-08-10; and (3) FRA should 
``[r]equire that railroads use methods that accurately measure rail 
head wear to ensure that deformation of the head does not affect the 
accuracy of the measurements.'' R-08-11.
---------------------------------------------------------------------------

    The RITF met on November 28-29, 2007; February 13-14, 2008; April 
15-16, 2008; July 8-9, 2008; September 16-17, 2008; February 3-4, 2009; 
June 16-17, 2009; October 29-30, 2009; January 20-21, 2010; March 9-11, 
2010; and April 20, 2010. The RITF's findings were reported to the 
Working Group for approval on July 28-30, 2010. The Working Group 
reached a consensus on the majority of the RITF's work and forwarded 
proposals to the full RSAC on September 23, 2010 and December 14, 2010. 
The RSAC voted to approve the Working Group's recommended text, which 
provided the basis for the NPRM in this proceeding and ultimately this 
final rule.
    In addition to FRA staff, the members of the Working Group include 
the following:
     AAR, including the Transportation Technology Center, Inc., 
and members from BNSF, Canadian National Railway (CN), Canadian Pacific 
Railway (CP), CSX Transportation, Inc. (CSX), The Kansas City Southern 
Railway Company (KCS), NS, and Union Pacific Railroad Company (UP);
     Amtrak;
     APTA, including members from Northeast Illinois Regional 
Commuter Railroad Corporation (Metra), Long Island Rail Road (LIRR), 
and Southeastern Pennsylvania Transportation Authority (SEPTA);
     ASLRRA (representing short line and regional railroads);
     BLET;
     BMWED;
     BRS;
     John A. Volpe National Transportation Systems Center 
(Volpe Center)
     NTSB; and
     UTU.

V. Development of the NPRM and Final Rule

A. Development of the NPRM

    Through RSAC discussions, the Working Group determined that it 
would focus its efforts on rail inspection processes. FRA regulations 
were reviewed during the meetings, and areas were identified that were 
potentially inconsistent or out of date with rail inspection practice 
that was considered standard in the industry. This included rail defect 
nomenclature, inspection frequencies, operator training, and rail 
inspection records. The group reached consensus on the necessary 
changes. These changes were presented to RSAC for approval, and these 
recommendations provided the basis for the NPRM.
    FRA worked closely with RSAC in developing these recommendations. 
FRA believes that RSAC effectively addressed rail inspection safety 
issues regarding the frequency of inspection, rail defects, remedial 
action, and operator qualification. FRA greatly benefited from the 
open, informed exchange of information during the RITF meetings. The 
NPRM was developed based on a general consensus among railroads, rail 
labor organizations, State safety managers, and FRA concerning rail 
safety. FRA believes that the expertise possessed by RSAC 
representatives enhanced the value of the recommendations, and FRA made 
every effort to incorporate them into the NPRM, which was published on 
October 19, 2012. See 77 FR 64249.
    Nevertheless, the Working Group was unable to reach consensus on 
one item that FRA elected to include in the NPRM, and subsequently in 
this final

[[Page 4240]]

rule. The Working Group could not reach consensus on the definition of 
``rail inspection segment'' length, which is utilized in the new 
performance-based test frequency determination in Sec.  213.237, 
``Inspection of rail.'' A discussion of this issue is detailed below.

B. Development of the Final Rule

    FRA notified the public of its options to submit written comments 
on the NPRM and to request an oral hearing on the NPRM as well. No 
request for a public hearing was received; however, some interested 
parties submitted written comments to the docket in this proceeding, 
and FRA considered all of these comments in preparing the final rule. 
FRA received a total of eleven comments on the NPRM, including comments 
from RSAC or Working Group members AAR, NTSB, BMWED, ARM, TRAIN, and 
UP, as well as comments from two private individuals.
    On April 16, 2013, the RITF reconvened through a conference call to 
discuss all public comments received on the NPRM and help achieve 
consensus on the recommendations concerning their incorporation into 
this final rule. FRA had reviewed and analyzed each issue mentioned in 
the comments, and during the call, FRA presented the comments and any 
proposed changes to the NPRM. The RITF expressed few concerns about 
FRA's approach to address the comments received, and decided it did not 
need to take a formal vote on the proposed changes.
    Having considered the public comments, and finding that the RSAC's 
recommendations help fulfill the agency's regulatory goals, are soundly 
supported, and are in accord with policy and legal requirements, FRA 
issues this final rule. Each of the comments FRA received is addressed 
below in the specific section of the final rule to which it applies.
    FRA notes that throughout the preamble discussion of this final 
rule, FRA refers to comments, views, suggestions, or recommendations 
made by members of the RITF or full RSAC, or comments made by the 
public, as they are contained in meeting minutes or other materials in 
the public docket. FRA does so to show the origin of certain issues and 
the nature of discussions during the development of the final rule. FRA 
believes that this serves to illuminate factors it has considered in 
making its regulatory decisions, as well as the rationale for those 
decisions.

VI. Track Inspection Time Study

    As noted previously, section 403(a) of the RSIA required the 
Secretary to conduct a study of track issues to determine whether track 
inspection intervals needed to be amended; whether track remedial 
action requirements needed to be amended; whether different track 
inspection and repair priorities and methods were required; and whether 
the speed of track inspection vehicles should be more specifically 
regulated. In conducting the Study, section 403(b) of the RSIA 
instructed the Secretary to consider ``the most current rail flaw, rail 
defect growth, rail fatigue, and other relevant track- or rail-related 
research and studies,'' as well as new inspection technologies, and 
NTSB and FRA accident information. The Study was completed and 
presented to Congress on May 2, 2011. Section 403(c) of the RSIA 
further provided that FRA prescribe regulations based on the results of 
the Study two years after its completion.
    On August 16, 2011, RSAC accepted Task 11-02, which was generated 
in response to the RSIA and to address the recommendations of the 
Study. Specifically, the purpose of the task was ``[t]o consider 
specific improvements to the Track Safety Standards or other responsive 
actions to the Track Inspection Time Study required by [section] 403 
(a) through (c) of the RSIA and other relevant studies and resources.'' 
The first meeting of the Working Group assigned to the task occurred on 
October 20, 2011, and a second meeting was held on December 20, 2011. 
At the third meeting on February 7-8, 2012, the AAR together with the 
BMWED stated that FRA had met its obligations under section 403(c) of 
the RSIA through its rulemakings on vehicle/track interaction, concrete 
crossties, and the proposals made in this rulemaking on rail integrity. 
They also suggested that additional action on RSAC Task 11-02 was 
unnecessary and recommended that the task should be closed. FRA took 
the proposal under advisement after the February meeting and conducted 
its own analysis as to the fulfillment of the mandates under section 
403. FRA concluded that these statutory obligations were being 
fulfilled and on April 13, 2012, the Working Group approved a proposal 
to conclude RSAC Task 11-02. On April 26, 2012, the full RSAC approved 
the proposal and closed RSAC Task 11-02. The recommendation approved by 
the full RSAC is described below.
    In determining whether regulations were necessary based on the 
results of the Study, RSAC examined the Study's four issues for 
improving the track inspection process:
     Expanding the use of automated inspections;
     Developing additional training requirements for track 
inspectors;
     Considering a maximum inspection speed for track 
inspection vehicles; and
     Influencing safety culture through a safety reporting 
system.
    The Study's first recommendation was that FRA consider expanding 
the use of automated inspections to improve inspection effectiveness. 
Specifically, the Study cited two specific track defects that are more 
difficult to detect through visual track inspection and could benefit 
from the use of automated inspection: rail seat abrasion (RSA) and 
torch cut bolt holes. Through discussion among the affected parties, it 
was determined that these areas of concern already had been covered 
under previous rulemaking and regulations. The Concrete Crossties final 
rule published on April 1, 2011, contained a new Sec.  213.234, 
``Automated inspection of track constructed with concrete crossties,'' 
which specifically employs the use of automated inspection ``to measure 
for rail seat deterioration.'' In addition, torch cut bolt holes have 
been prohibited on track Classes 2 and above since 1999, as codified in 
Sec. Sec.  213.121(g) and 213.351(f), and they are easily identifiable 
through the rail flaw detection technology currently in use. Thus, the 
RSAC concluded that additional regulations to find such defects would 
be unnecessary.
    Outside of these two specific defects, the RSAC concluded that the 
instant rulemaking on rail integrity would also revise automated 
inspection standards in other areas, such as ultrasonic testing. For 
example, this rulemaking changes the ultrasonic testing of rail from a 
standard based on time and tonnage to one based on self-adaptive 
performance goals. Thus, the full RSAC concluded that the use of 
automated inspection has been sufficiently expanded in the areas that 
currently are most ideally suited for development. While FRA and RSAC 
noted that they may wish to make changes to the automated inspection 
standards in the future, FRA and RSAC nevertheless maintained that the 
changes stated above sufficiently satisfy the RSIA's mandate.
    However, RSAC concurred with FRA, BMWED and AAR that it was 
important to ensure that any type of report generated from the 
automated inspection of track, regardless of whether it is mandated by 
regulation or voluntarily utilized by a railroad, be made available to 
track inspectors. Therefore, in this final rule, FRA is

[[Page 4241]]

issuing policy guidance to encourage track owners and railroads to 
provide the information from their automated track inspections in a 
usable format to those persons designated as fully qualified under the 
Track Safety Standards and assigned to inspect or repair the track over 
which an automated inspection is made. This guidance is as follows:

    When automated track inspection methods are used by the track 
owner, FRA recommends that the information from that inspection be 
provided or made readily available to those persons designated as 
fully qualified under 49 CFR 213.7 and assigned to inspect or repair 
the track over which the automated inspection was made.

    Next, the Study addressed whether FRA should develop additional 
training requirements for track inspectors. RSAC found that it was 
unnecessary to generate additional training standards under RSAC Task 
11-02 for two reasons. First, the instant rulemaking would create a new 
Sec.  213.238 to address an area of training that requires new 
standards. Section 213.238 defines a qualified operator of rail flaw 
detection equipment and requires that each provider of rail flaw 
detection service have a documented training program to ensure that a 
rail flaw detection equipment operator is qualified to operate each of 
the various types of equipment for which he or she is assigned, and 
that proper training is provided in the use of newly-developed 
technologies. Second, the NPRM on Training, Qualification, and 
Oversight for Safety-Related Railroad Employees, 77 FR 6412 (proposed 
Feb. 7, 2012) (to be codified at 49 CFR parts 214, 232, and 243), would 
require that employers develop and submit for FRA review a program 
detailing how they will train their track inspectors, among other 
personnel. As proposed in the NPRM, employees charged with the 
inspection of track or railroad equipment are considered safety-related 
railroad employees that each employer must train and qualify. The 
proposed formal training for employees responsible for inspecting track 
and railroad equipment is expected to cover all aspects of their duties 
related to complying with the Federal standards. FRA would expect that 
the training programs and courses for such employees would include 
techniques for identifying defective conditions and would address what 
sort of immediate remedial actions need to be initiated to correct 
critical safety defects that are known to contribute to derailments, 
accidents, incidents, or injuries. Id., at 6415. The RSAC found that 
new requirements for the training of track inspectors were being 
adequately addressed by this proposed rule on employee training 
standards, and thus did not believe additional action was currently 
necessary in this area.
    Third, the Study addressed whether track hi-rail inspection speed 
should be specified. The Study concluded that specifying limits to hi-
rail inspection speeds could be ``counterproductive.'' With the 
currently-available data in this area, the RSAC concurred with the 
Study's recommendation and determined that no further action needed to 
be taken in this area at this time. The RSAC found that the existing 
reliance on the ``inspector's discretion'' as noted in Sec.  213.233, 
should generally govern track inspection speed. This point will be 
emphasized in the next publication of FRA's Track Safety Standards 
Compliance Manual. FRA also makes clear that, in accordance with Sec.  
213.233, if a vehicle is used for visual inspection, the speed of the 
vehicle may not be more than 5 m.p.h. when passing over track crossings 
and turnouts.
    Finally, the Study addressed ways to enhance the track safety 
culture of railroads through programs such as a safety reporting 
system, like the Confidential Close Call Reporting System piloted by 
FRA. The RSAC was aware that the Risk Reduction Working Group was in 
the process of developing recommendations for railroads to develop risk 
reduction programs, which should incorporate many safety concerns in 
this area. Therefore, the RSAC concluded that additional, overlapping 
discussion was unnecessary given the specific, concurrent focus of the 
Risk Reduction Working Group.
    FRA notes that, in addition to addressing the Study's 
recommendations, RSAC Task 11-02 also incorporated other goals Congress 
had for the Study, which are described in section 403(a) of the RSIA, 
such as reviewing track inspection intervals and remedial action 
requirements, as well as track inspection and repair priorities. The 
RSAC concluded that FRA's recent and ongoing rulemakings are 
sufficiently addressing these areas and that no additional work is 
currently necessary. Specifically, the instant rulemaking on rail 
integrity is intended to amend inspection intervals to reflect a new 
performance-based inspection program, revise the remedial action table 
for rail, and alter inspection and repair priorities involving internal 
rail testing and defects such as a crushed head and defective weld. The 
Concrete Crossties final rule also established new inspection methods 
and intervals requiring automated inspection, as well as new remedial 
actions for exceptions that can be field-verified within 48 hours. 
Finally, in addition to other requirements, the Vehicle/Track 
Interaction Safety Standards (VTI) rulemaking, Vehicle/Track 
Interaction Safety Standards; High-Speed and High Cant Deficiency 
Operations, 78 FR 16052 (March 13, 2013) (codified at 49 CFR parts 213 
and 238), addresses track geometry, inspection, and VTI safety 
requirements for high speed operations and operations at high cant 
deficiency over any track class. Overall, FRA believes that the recent 
and ongoing work of the RSAC and FRA, including recent and ongoing 
rulemakings, sufficiently address the statutorily-mandated topics in 
section 403 of the RSIA.
    Nonetheless, as part of its comments submitted to the docket on the 
NPRM, NTSB included comments on the Study and RSAC resolution of Task 
11-02. NTSB voiced concern regarding the ability of track inspectors to 
detect hazards when they inspect multiple tracks from a hi-rail 
inspection vehicle. While this issue was not specifically addressed by 
the Study or RSAC, FRA's Office of Research and Development is 
formulating a study to look at the effectiveness of different 
inspection methodologies, including hi-rail inspection, for detecting 
various types of defects. Knowing the effectiveness of each system will 
allow for the development of optimal inspection methodologies and 
optimal inspection frequencies.
    NTSB's comments also suggested ``that a combination of visual and 
automated track inspections should be required for use not just in 
track with concrete ties but in all high-tonnage routes, passenger 
train routes, and hazardous materials routes.'' While FRA recognizes 
the important role automated track inspections play in defect 
detection, FRA concurs with the recommendation of the full RSAC that 
the current level of required automated inspections is satisfactory at 
this time.

VII. Section-By-Section Analysis

Section 213.3 Application

    FRA modifies paragraph (b) of this section to clarify the exclusion 
of track located inside a plant railroad's property from the 
application of this part. In this paragraph, ``plant railroad'' means a 
type of operation that has traditionally been excluded from the 
application of FRA regulations because it is not part of the general 
railroad system of transportation (general system). In the past, FRA 
has not defined the term ``plant railroad'' in other regulations that 
it has issued

[[Page 4242]]

because FRA assumed that its jurisdictional Policy Statement under the 
Statement of Agency Policy Concerning Enforcement of the Federal 
Railroad Safety Laws, The Extent and Exercise of FRA's Safety 
Jurisdiction, 49 CFR part 209, Appendix A (FRA's Policy Statement or 
the Policy Statement), provided sufficient clarification as to the 
definition of that term. However, it has come to FRA's attention that 
certain rail operations believed that they met the characteristics of a 
plant railroad, as set forth in the Policy Statement, when, in fact, 
their rail operations were part of the general railroad system of 
transportation (general system) and therefore did not meet the 
definition of a plant railroad. FRA seeks to avoid any confusion as to 
what types of rail operations qualify as plant railroads and also to 
save interested persons the time and effort needed to cross-reference 
and review FRA's Policy Statement to determine whether a certain 
operation qualifies as a plant railroad. Consequently, FRA defines the 
term ``plant railroad'' in this final rule.
    The definition clarifies that when an entity operates a locomotive 
to move rail cars in service for other entities, rather than solely for 
its own purposes or industrial processes, the services become public in 
nature. Such public services represent the interchange of goods, which 
characterizes operation on the general system. As a result, even if a 
plant railroad moves rail cars for entities other than itself solely on 
its property, the rail operations will likely be subject to FRA's 
safety jurisdiction because those rail operations bring plant track 
into the general system.
    The definition of the term ``plant railroad'' is consistent with 
FRA's longstanding policy that it will exercise its safety jurisdiction 
over a rail operation that moves rail cars for entities other than 
itself because those movements bring the track over which the entity is 
operating into the general system. See 49 CFR part 209, Appendix A. 
FRA's Policy Statement provides that ``operations by the plant railroad 
indicating it [i]s moving cars on . . . trackage for other than its own 
purposes (e.g., moving cars to neighboring industries for hire)'' 
brings plant track into the general system and thereby subjects it to 
FRA's safety jurisdiction. Id. Additionally, this interpretation of the 
term ``plant railroad'' has been upheld in litigation before the U.S. 
Court of Appeals for the Fifth Circuit. See Port of Shreveport-Bossier 
v. Federal Railroad Administration, No. 10-60324 (5th Cir. 2011) 
(unpublished per curiam opinion).
    FRA also makes clear that FRA's Policy Statement addresses 
circumstances where railroads that are part of the general system may 
have occasion to enter a plant railroad's property (e.g., a major 
railroad goes into a chemical or auto plant to pick up or set out cars) 
and operate over its track. As explained in the Policy Statement, the 
plant railroad itself does not get swept into the general system by 
virtue of the other railroad's activity, except to the extent it is 
liable, as the track owner, for the condition of its track over which 
the other railroad operates during its incursion into the plant. 
Accordingly, the rule makes clear that the track over which a general 
system railroad operates is not excluded from the application of this 
part, even if the track is located within the confines of a plant 
railroad.
    During the comment period on the NPRM, FRA received a joint comment 
from ARM and TRAIN that claimed that part 213 had not been applied to 
non-general system tourist railroads in the past, and that in past 
rulemakings, FRA had expressly explained that the exclusory language--
``located inside an installation which is not part of the general 
railroad system of transportation''--included non-general system 
tourist railroads. By way of example, the joint comments referred to 
the conductor certification rulemaking (49 CFR part 242), which 
included a standard ``installation'' exclusion that expressly provided 
that part 242 does not apply to non-general system tourist railroads.
    Additionally, the joint comments stated that proposed Sec.  
213.3(b)(2) focused on plant railroads, especially as that subsection 
specifically defined the term ``plant railroad.'' ARM and TRAIN 
concluded that the proposed revision to the applicability section 
effectively makes the ``installation'' exclusion applicable only to 
plant railroads and they sought clarification from FRA on that point. 
Moreover, if that exclusion were to be limited to ``plant railroads,'' 
they requested that a new exclusion be added for non-general system 
tourist railroads.
    FRA did not intend to alter the current ``installation'' exclusion 
in part 213 regarding tourist, scenic, historic, or excursion 
operations that are not part of the general system. Thus, as stated 
above, in Sec.  213.3(b)(2) of the final rule, FRA incorporates 
language similarly utilized in part 242 to explicitly exclude tourist, 
scenic, historic, or excursion operations that are not part of the 
general railroad system of transportation from part 213.
    An anonymous commenter on the NPRM requested clarification as to 
whether plant railroads must comply with the requirements of part 213 
for track over which general system railroads operate. The comment 
stated that if plant railroads must comply with part 213 for track 
within the plant over which general system railroads operate, it would 
be a large departure from past FRA practice and would burden the plant 
railroads. However, as stated above, FRA has always held that plant 
track over which general system railroads operate is subject to part 
213, and FRA makes this clear in Sec.  213.3(b)(1). The Policy 
Statement also specifically states that when a general system railroad 
enters a plant, its activities are covered by FRA's regulations during 
that period. The Policy Statement explains that, ``[t]he plant railroad 
itself, however, does not get swept into the general system by virtue 
of the other railroad's activity, except to the extent it is liable, as 
the track owner, for the condition of its track over which the other 
railroad operates during its incursion into the plant (emphasis 
added).'' In the Policy Statement, FRA reached the same conclusion for 
the leased track exception over which general system railroads operate: 
``As explained above, however, the track itself would have to meet 
FRA's standards if a general system railroad operated over it . . . .'' 
Id. The plant railroad is only required to comply with part 213 for the 
track over which the general system railroad operates; other track in 
the plant is not subject to part 213.
    In addition, an individual commenter recommended that specific 
language be included in Sec.  213.3, requiring that certain subparts of 
part 213 (B, C, D, and E) apply to track within a plant over which a 
general system railroad operates. The commenter further suggested 
specifying that if the plant railroad designates such track as excepted 
track, the plant must comply with all provisions of part 213. FRA is 
not incorporating these suggestions into the regulation at this time. 
FRA has always held that plant track over which general system 
railroads operate is subject to part 213, as explained above, and FRA 
is making that clear in Sec.  213.3(b)(1), as revised by this final 
rule.

Section 213.113 Defective Rails

    Paragraph (a). In paragraph (a), FRA clarifies that only a person 
qualified under Sec.  213.7 is qualified to determine that a track may 
continue to be utilized once a defective condition is identified in a 
rail. FRA accepts the RSAC

[[Page 4243]]

recommendation to add ``or repaired'' to paragraph (a)(1) to allow 
railroads to use recently-developed processes to remove the defective 
portion of the rail section and replace that portion utilizing 
recently-developed weld technologies commonly referred to as ``slot 
weld'' or ``wide gap weld.'' These processes allow the remaining 
portion of non-defective rail to remain in the track.
    Paragraph (b). FRA redesignates former paragraph (b) as paragraph 
(d) and adds a new paragraph (b). Paragraph (b) provides that track 
owners have up to a four-hour period in which to verify that certain 
suspected defects exist in a rail section, once they learn that the 
rail contains an indication of any of the defects identified in 
paragraph (c)'s remedial action table. This four-hour, deferred 
verification period applies only to suspected defects that may require 
remedial action notes ``C'' through ``I,'' found in the remedial action 
table. This four-hour period does not apply to suspected defects that 
may require remedial action notes ``A,'' ``A2,'' or ``B,'' which are 
more serious and must continue to be verified immediately.
    The four-hour timeframe provides flexibility to allow the rail flaw 
detector car to continue testing in a non-stop mode, without requiring 
verification of less serious, suspected defects that may require 
remedial action under notes ``C'' through ``I.'' This flexibility also 
helps to avoid the need to operate the detector car in a non-test, 
``run light'' mode over a possibly severe defective rail condition that 
could cause a derailment, when having to clear the track for traffic 
movement. However, any suspected defect encountered that may require 
remedial action notes ``A,'' ``A2, ``or ``B'' requires immediate 
verification. Overall, the four-hour, deferred-verification period will 
help to improve rail flaw detector car utilization, increase the 
opportunity to detect more serious defects, and ensure that all the 
rail a detector car is intended to travel over while in service is 
inspected.
    FRA is in agreement with the railroad industry that most tracks are 
accessible by road or hi-rail, and supports a deferred-verification 
process where the operator can verify the suspect defect location with 
a portable type of test unit. FRA also agrees that it is more 
beneficial to continue the car's inspection past the location instead 
of leaving a possibly serious internal defect undetected in the track 
ahead.
    Paragraph (c). FRA adds a new paragraph (c) to contain both the 
remedial action table and its notes, as revised, which formerly were 
included under paragraph (a). Specifically, FRA revises the remedial 
action table regarding transverse defects. FRA places the ``transverse 
fissure'' defect in the same category as detail fracture, engine burn 
fracture, and defective weld because they all normally fail in a 
transverse plane. The RITF discussed the possible addition of compound 
fissure to this category as well, to combine all transverse-oriented 
defects under the same remedial action. However, FRA ultimately 
determined that ``compound fissure'' should not be included in this 
category because a compound fissure may result in rail failure along an 
oblique or angular plane in relation to the cross section of the rail 
and should be considered a more severe defect requiring more 
restrictive remedial action. In addition, in order to take rail head 
wear into consideration, FRA changes the heading of the remedial action 
table for all transverse-type defects (i.e., compound fissures, 
transverse fissures, detail fractures, engine burn fractures, and 
defective welds) to refer to the ``percentage of existing rail head 
cross-sectional area weakened by defect,'' to indicate that all 
transverse defect sizes are related to the actual rail head cross-
sectional area. This modification will preclude the possibility that 
the flaw detector car operator may size transverse defects without 
accounting for the amount of rail head loss on the specimen.
    FRA's revisions to the remedial action table also reduce the 
current limit of eighty percent of the rail head cross-sectional area 
requiring remedial action notes ``A2'' or ``E and H'' to sixty percent 
of the rail head cross-sectional area. FRA reviewed the conclusions of 
the most recent study performed by the Transportation Technology 
Center, Inc., concerning the development of transverse-oriented detail 
fracture defects: Improved Rail Defect Detection Technologies: Flaw 
Growth Monitoring and Service Failure Characterization, AAR Report No. 
R-959, Davis, David D., Garcia, Gregory A., Snell, Michael E., 
September 2002. (A copy of this study has been placed in the public 
docket for this rulemaking.) The study concluded that detail fracture 
transverse development is considered to be inconsistent and 
unpredictable. Further, the average growth development of the detail 
fracture defects in the study exceeded five percent of the cross-
sectional area of the rail head per every one mgt of train traffic. 
Id., at Table 1. Recognizing the impact of these findings, FRA believes 
that detail fracture defects reported as greater than sixty percent of 
the cross-sectional area of the rail head necessitate the remedial 
actions required under this section, specifically that the track owner 
assign a person designated under Sec.  213.7 to supervise each 
operation over the defect or apply and bolt joint bars to the defect in 
accordance with Sec.  213.121(d) and (e), and limit operating speed 
over the defect to 50 m.p.h. or the maximum allowable speed under Sec.  
213.9 for the class of track concerned, whichever is lower.
    FRA also adds a required remedial action for a longitudinal defect 
that is associated with a defective weld. This addition is based on 
current industry detection and classification experience for this type 
of defect. FRA adds this defect to the remedial action table and 
includes all longitudinal defects within one group subject to identical 
remedial actions based on their reported sizes. These types of 
longitudinal defects all share similar growth rates and the same 
remedial actions are considered appropriate for each type. FRA makes 
clear that defective weld also continues to be identified in the 
remedial action table for transverse-oriented defects.
    The final rule expressly adds ``crushed head'' to the remedial 
action table. This type of defect may affect the structural integrity 
of the rail section and impact vehicle dynamic response in the higher 
speed ranges. AAR and NTSB pointed out in their comments on the NPRM 
that the remedial action table had several changes that were not 
included in the consensus language generated by the Task Force 
meetings. In particular, AAR mentioned that a flattened rail/crushed 
head defect has always been defined in the remedial action table as 
having a depth greater than or equal to \3/8\ inch and a length greater 
than or equal to 8 inches. However, in the NPRM's remedial action 
table, a flattened rail/crushed head defect was defined as having a 
depth greater than \3/8\ inch and a length greater than 8 inches.
    FRA did not intend to change the consensus language in this area of 
the remedial action table. It appears that the changes were 
inadvertent, and FRA agrees with these commenters that the entries for 
flattened rail and crushed head defects should be defined in the 
remedial action table as having a depth greater than or equal to \3/8\ 
inch and a length greater than or equal to 8 inches. A crushed head 
defect is identified in the table and defined in paragraph (d) of this 
section accordingly.
    AAR and an individual commenter recommended in their comments on 
the NPRM that the proposed changes to this section should be also be 
made to subpart G of the Track Safety Standards to ensure consistency 
in the remedial

[[Page 4244]]

action tables and rail defect definitions among all classes of track. 
However, the changes to the regulation as found in this final rule do 
not adequately address Class 6 through 9 track in areas such as rail 
remedial action and test frequency. Thus, FRA will consider taking 
action in a separate, future proceeding as necessary to address the 
safety of high-speed operations.
    FRA notes that, during the RITF discussions, AAR expressed some 
concern regarding Footnote 1 to the remedial action table, which 
identifies conditions that could be considered a ``break out in rail 
head.'' AAR pointed out that there had been previous incidents where an 
FRA inspector would consider a chipped rail end as a rail defect under 
this section, and at times the railroad was issued a defect or 
violation regarding this condition. FRA makes clear that a chipped rail 
end is not a designated rail defect under this section and is not, in 
itself, an FRA-enforceable defective condition. FRA also intends to 
make clear in the Track Safety Standards Compliance Manual guidance for 
FRA inspectors that a chipped rail end is not to be considered as a 
``break out in rail head.''
    FRA adds a second footnote, Footnote 2, to the remedial action 
table. The footnote provides that remedial action ``D'' applies to a 
moon-shaped breakout, resulting from a derailment, with a length 
greater than 6 inches but not exceeding 12 inches and a width not 
exceeding one-third of the rail base width. FRA has made this change to 
allow relief because of the occurrence of multiple but less severe 
``broken base'' defects that result from a dragging wheel derailment 
and may otherwise prevent traffic movement if subject to more 
restrictive remedial action. FRA also recommends that track owners 
conduct a special visual inspection of the rail pursuant to Sec.  
213.239, before the operation of any train over the affected track. A 
special visual inspection pursuant to Sec.  213.239, which requires 
that an inspection be made of the track involved in a derailment 
incident, should be done to assess the condition of the track 
associated with these broken base conditions before the operation of 
any train over the affected track.
Revisions to the ``Notes'' to the Remedial Action Table
    Notes A, A2, and B. Notes A, A2, and B are published in their 
entirety without substantive change.
    Note C. FRA revises remedial action note C, which applies 
specifically to detail fractures, engine burn fractures, transverse 
fissures, and defective welds, and addresses defects that are 
discovered during an internal rail inspection required under Sec.  
213.237 and whose size is determined not to be in excess of twenty-five 
percent of the rail head cross-sectional area. For these specific 
defects, a track owner formerly had to apply joint bars bolted only 
through the outermost holes at the defect location within 20 days after 
it had determined to continue the track in use. However, evaluation of 
recent studies on transverse defect development shows that slow crack 
growth life is inconsistent and unpredictable. Therefore, FRA believes 
waiting 20 days to repair this type of defect is too long. Accordingly, 
as revised in this final rule, for these specific defects a track owner 
must apply joint bars bolted only through the outermost holes to the 
defect within 10 days after it is determined to continue the track in 
use. When joint bars have not been applied within 10 days, the track 
speed must be limited to 10 m.p.h. until joint bars are applied. The 
RITF recommended including this addition to allow the railroads 
alternative relief from remedial action for these types of defects in 
Class 1 and 2 track, and FRA agrees.
    Note D. FRA revises remedial action note D, which applies 
specifically to detail fractures, engine burn fractures, transverse 
fissures, and defective welds, and addresses defects that are 
discovered during an internal rail inspection required under Sec.  
213.237 and whose size is determined not to be in excess of 60 percent 
of the rail head cross-sectional area. Formerly, for these specific 
defects, a track owner had to apply joint bars bolted only through the 
outermost holes at the defect location within 10 days after it is 
determined that the track should continue in use. However, evaluation 
of recent studies on transverse defect development shows that slow 
crack growth life is inconsistent and unpredictable. Therefore, FRA 
determined that allowing a 10-day period before repairing this type of 
defect is too long. Instead, as revised in this final rule, for these 
specific defects a track owner must apply joint bars bolted only 
through the outermost holes to the defect within 7 days after it is 
determined to continue the track in use. A timeframe of 7 days is 
sufficient to allow for replacement or repair of these defects, no 
matter when a defect is discovered. The rule also requires that when 
joint bars have not been applied within 7 days, the speed must be 
limited to 10 m.p.h. until joint bars are applied. The RITF recommended 
this addition to allow the railroads alternative relief from remedial 
action for these types of defects in Class 1 and 2 track, and FRA 
agrees.
    Note E. Note E is published in its entirety without substantive 
change.
    Note F. FRA revises note F so that if the rail remains in the track 
and is not replaced or repaired, the re-inspection cycle starts over 
with each successive re-inspection unless the re-inspection reveals the 
rail defect to have increased in size and therefore become subject to a 
more restrictive remedial action. This process continues indefinitely 
until the rail is removed from the track or repaired. If not inspected 
within 90 days, the speed is limited to that for Class 2 track or the 
maximum allowable speed under Sec.  213.9 for the class of track 
concerned, whichever is lower, until inspected. This change defines the 
re-inspection cycle and requires the railroad to continue the re-
inspection or apply a reduction in speed.
    Note G. Note G formerly required the track owner to inspect the 
defective rail within 30 days after determining that the track should 
continue to be used. FRA revises note G so that if the rail remains in 
the track and is not replaced or repaired, the re-inspection cycle 
starts over with each successive re-inspection unless the re-inspection 
reveals the rail defect to have increased in size and therefore become 
subject to a more restrictive remedial action. This process continues 
indefinitely until the rail is removed from the track or repaired. If 
not inspected within 30 days, the track owner is required to limit the 
speed to that for Class 2 track or the maximum allowable speed under 
Sec.  213.9 for the class of track concerned, whichever is lower, until 
inspected. This change defines the re-inspection cycle and requires the 
track owner to continue the re-inspection or apply a reduction in 
speed.
    Notes H and I. Notes H and I are published in their entirety 
without substantive change.
    Paragraph (d). FRA redesignates former paragraph (b) as paragraph 
(d) and revises it to define terms used in this section and in Sec.  
213.237, by reference. Definitions provided in former paragraphs 
(b)(1), (3) through (8), (10) through (13), and (15) are published in 
their entirety without substantive change. However, three terms are 
redefined (compound fissure, defective weld, and flattened rail), one 
is added (crushed head), and all terms are enumerated in alphabetical 
order.
    (d)(3) Compound fissure. FRA revises this definition, which 
includes removing the last sentence of the former definition in 
paragraph (b)(2) providing that ``[c]ompound fissures require

[[Page 4245]]

examination of both faces of the fracture to locate the horizontal 
split head from which they originate.'' Rail failure analysis where a 
pre-existing fatigue condition is present normally exhibits an 
identical, identifiable defective condition on both rail fracture 
faces. Thus, analysis of one fracture face should be sufficient to 
determine the type of defect, the origin of the defect, and the size of 
the defect. Additionally, it is typical in the railroad industry that 
only one failure fracture face is retained during the subsequent repair 
phase of rail replacement. Therefore, FRA has determined that the 
examination of only one fracture face is necessary to identify the 
horizontal split head from which compound fissures originate, and 
modifies the definition accordingly.
    (d)(4) Crushed head. As discussed earlier, FRA expressly adds 
crushed head to the remedial action table. FRA recognizes that rail 
flaw detection operators currently detect and classify this type of 
defect, and this addition provides a remedial action for the track 
owners to use. Crushed head is identified in the table and defined by 
the current industry standard as being a short length of rail, not at a 
joint, which has drooped or sagged across the width of the rail head to 
a depth of \3/8\ inch or more below the rest of the rail head and 8 
inches or more in length. FRA requires that measurements taken to 
classify the crushed head defect not include the presence of localized 
chips or pitting in the rail head. FRA notes that it will include this 
language in a section on ``Crushed head'' in the Track Safety Standards 
Compliance Manual.
    (d)(6) Defective weld. In general, this definition continues to 
define defective weld for purposes of the transverse-oriented defects 
identified in the remedial action table. FRA modifies the definition of 
defective weld by adding that if the weld defect progresses 
longitudinally through the weld section, the defect is considered a 
split web for purposes of the remedial action required by this section. 
As discussed above, FRA includes defective weld in the remedial action 
table for a longitudinal defect that is associated with a defective 
weld. FRA has determined that the railroad industry currently detects 
and classifies this type of defect, and the inclusion codifies a 
specific remedial action for the railroads to utilize. FRA recognizes 
that these defects develop in an oblique or angular plane within the 
rail section and have growth rates comparable to other longitudinal-
type defects; therefore, FRA believes that the same remedial action is 
appropriate.
    (d)(9) Flattened Rail. FRA modifies the definition of flattened 
rail so that it is aligned with the current industry standard and the 
remedial action table's requirements as rail flattened out across the 
width of the rail head to a depth of \3/8\ inch or more below the rest 
of the rail and 8 inches or more in length. Formerly, this definition 
described only the width of the rail, which remains unchanged. This 
definition now includes the length of the rail as well, which is 
specified in the remedial action table.

Section 213.119 Continuous Welded Rail (CWR); Plan Contents

    FRA removes the former requirement under paragraph (h)(7)(ii) of 
this section to generate a Joint Bar Fracture Report (Fracture Report) 
for every cracked or broken CWR joint bar that the track owner 
discovers during the course of an inspection. Under former paragraph 
(h)(7)(ii)(C) of this section any track owner, after February 1, 2010, 
could petition FRA to conduct a technical conference to review fracture 
report data submitted through December 2009 and assess the necessity 
for continuing to collect this data. One Class I railroad submitted a 
petition to FRA, and on October, 26, 2010, a meeting of the RSAC Track 
Safety Standards Working Group served as a forum for a technical 
conference to evaluate whether there was a continued need for the 
collection of these reports. The Group ultimately determined that the 
reports were costly and burdensome to the railroads and their 
employees, while providing little useful research data to prevent 
future failures of CWR joint bars. The Group found that Fracture 
Reports were not successful in helping to determine the root cause of 
CWR joint bar failures because the reports gathered only a limited 
amount of information after the joint bar was already broken.
    Instead, the Group recommended that a new study be conducted to 
determine what conditions lead to CWR joint bar failures and include a 
description of the overall condition of the track in the vicinity of 
the failed joint(s), track geometry (gage, alignment, profile, cross-
level) at the joint location, and the maintenance history at the joint 
location, along with photographic evidence of the failed joint. Two 
Class I railroads volunteered to participate in a new joint bar study, 
which is expected to provide better data to pinpoint why CWR joint bars 
fail. In the meantime, given that FRA does not find it beneficial to 
retain the requirement for railroads to submit the Fracture Reports, 
FRA removes the requirement and reserves the paragraph.

Section 213.237 Inspection of Rail

    Paragraph (a). Under former paragraph (a) of this section, Class 4 
and 5 track, as well as Class 3 track over which passenger trains 
operate, was required to be tested for internal rail defects at least 
once every accumulation of 40 mgt or once a year (whichever time was 
shorter). Class 3 track over which passenger trains do not operate was 
required to be tested at least once every accumulation of 30 mgt or 
once per year (whichever time was longer). These maximum tonnage and 
time intervals for inspecting rail have been revised and moved to new 
paragraph (c). When these inspection requirements were drafted, track 
owners were already initiating and implementing the development of a 
performance-based, risk management concept for determining rail 
inspection frequency, which is often referred to as the ``self-adaptive 
scheduling method.'' Under this method, inspection frequency is 
established annually based on several factors, including the total 
detected defect rate per test, the rate of service failures between 
tests, and the accumulated tonnage between tests. The track owners then 
utilize this information to generate and maintain a service failure 
performance target.
    This final rule revises paragraph (a) to require track owners to 
maintain service failure rates of no more than 0.1 service failure per 
year per mile of track for all Class 4 and 5 track; no more than 0.09 
service failure per year per mile of track for all Class 3, 4, and 5 
track that carries regularly-scheduled passenger trains or is a 
hazardous materials route; and no more than 0.08 service failure per 
year per mile of track for all Class 3, 4, and 5 track that carries 
regularly-scheduled passenger trains and is a hazardous materials 
route.
    The changes to this section codify standard industry good 
practices. With the implementation of the self-adaptive scheduling 
method, track owners have generally tested more frequently than they 
have been required, and the test intervals align more closely with 
generally-accepted maintenance practices. The frequency of rail 
inspection cycles varies according to the total detected defect rate 
per test; the rate of service failures, as defined in paragraph (j) 
below, between tests; and the accumulated tonnage between tests--all of 
which are factors that the railroad industry's rail quality managers 
generally consider when determining test schedules.
    In 1990, as a result of its ongoing rail integrity research, FRA 
released report DOT/FRA/ORD-90/05; Control of Rail

[[Page 4246]]

Integrity by Self-Adaptive Scheduling of Rail Tests; Volpe 
Transportation Systems Center; Oscar Orringer. The research objective 
was to provide the basis for a specification to adequately control the 
scheduling of rail tests, and the research provided quantitative 
guidelines for scheduling rail tests based on rail defect behavior. The 
purpose of this method for scheduling rail tests is to establish a 
performance goal that is optimized to control rail flaw development and 
subsequent rail failure in a designated track segment. If the 
performance goal is not met, a responsive adjustment is triggered in 
the rail test schedule to ensure that the goal is met.
    The research determined that a minimum requirement for annual rail 
testing is a baseline figure of 0.1 service failure per mile for 
freight railroads. This baseline value can then be adjusted depending 
on the characteristics of the individual railroad's operation and 
internal risk control factors. For instance, a rail segment that 
handles high-tonnage unit trains and also supports both multiple 
passenger trains and trains carrying hazardous materials each day may 
require scheduling rail test frequencies adequate to maintain a 
performance goal of 0.03 service failure. The baseline value applied 
for determining rail test frequencies should also be adjusted based on 
specific conditions that may influence rail flaw development such as 
age of the rail, rail wear, climate, etc. As a result, the RITF reached 
consensus that 0.1 service failure per mile was established as an 
appropriate minimum performance requirement for use in the U.S. freight 
railroad system. The RITF also reached consensus that the minimum 
performance requirement should be adjusted to no more than 0.09 service 
failure per year per mile of track for all Class 3, 4, and 5 track that 
carries regularly-scheduled passenger trains or is a hazardous 
materials route, and no more than 0.08 service failure per year per 
mile of track for all Class 3, 4, and 5 track that carries regularly-
scheduled passenger trains and is a hazardous materials route.
    Paragraph (b). Former paragraph (b) is redesignated as paragraph 
(f) without substantive change. Under new paragraph (b), each rail 
inspection segment is designated by the track owner. While the RITF 
discussed at length how best to define the term ``segment'' as it 
relates to inspection of rail under this section, ultimately the RITF 
could not come to a consensus on a definition. Specifically, the BMWED, 
NTSB and AAR were split on how best to define this term, and so no 
recommendation was ever made to the full RSAC. The BMWED and NTSB were 
concerned that collecting service failure rates that were averaged over 
excessively large segments of track (such as segments longer than a 
subdivision length) would fail to identify discrete areas of weakness 
with chronically high concentrations of service failures. At the same 
time, the BMWED and NTSB also recognized that if a segment size was too 
small, one random failure could trigger a service failure rate in 
excess of the performance target under this section. Consequently, the 
BMWED and NTSB recommended that FRA impose a specific, uniform segment 
rate to be used by all railroads that is calculated to achieve the 
optimal length.
    The AAR, on the other hand, maintained that each individual 
railroad is in the best position to determine its own segment lengths 
based on factors that are unique to the railroad's classification 
system. The AAR noted that each railroad has distinct segment 
configurations and challenges for which each railroad has developed 
specific approaches to identify and address them. The AAR believed that 
it was not possible to define a single methodology to appropriately 
address every railroad's specific configurations and factors, and that 
any approach established in a regulation would be extremely difficult 
and costly to implement. The AAR stated that the large amount of route 
miles, complex networks, and vast quantities of data being analyzed on 
Class I railroads requires an automated, electronic approach that 
integrates satisfactorily with each railroad's data system, which 
currently Class I railroads utilize. Arbitrary segmentation limitations 
developed through regulation would not be compatible with some of those 
systems and would create an onerous and costly burden of redesigning 
systems, with little overall improvement to safety, according to the 
AAR. The AAR maintained that each individual service failure represents 
a certain risk which is not affected by whether it is close to other 
service failures. The AAR asserted that the railroads want the service 
failure rate to be as low as possible and look for any patterns in 
service failures that suggest ways to reduce the service failure rate. 
Noting that these patterns can be affected by a myriad of different 
factors, the AAR stated that trying to create artificial boundaries on 
the length of a segment could lead to a less than optimal use of 
internal rail inspection capabilities, as well as decreased safety.
    In the NPRM, FRA acknowledged the BMWED's and NTSB's concerns 
regarding identifying localized areas of failure. However, FRA also 
recognized that track owners have designed their current rail 
inspection segment lengths over a decade of researching their own 
internal rail testing requirements. FRA noted that this research takes 
into consideration pertinent criteria such as rail age, accumulated 
tonnage, rail wear, track geometry, and other conditions specific to 
these individually-defined segments. FRA stated that altering existing 
rail inspection segment lengths, such as by requiring a designated 
segment length without extensive data and research, could disrupt 
current engineering policies and result in problematic and costly 
adjustments to current maintenance programs without providing 
significant safety benefits.
    FRA also concluded that track owners, as well as FRA, would be able 
to capture rail failure data, even in large segment areas, by simply 
looking at rail failure records and comparing milepost locations. 
Therefore, in the NPRM, FRA decided not to require a uniform segment 
length to be applied by all track owners. Instead, FRA proposed to 
require that track owners utilize their own designated segment lengths 
in place by the effective date of this final rule. However, in order to 
maintain consistency and uniformity, FRA proposed to require that if a 
track owner wished to change or deviate from its designated segment 
lengths, the track owner must receive FRA approval to make any such 
change. This would ensure that the track owner does not have the 
ability to freely alter a defined segment length in order to compensate 
for a sudden increase of detected defects and service failures that 
could require an adjustment to the test frequency as a result of 
accelerated defect development.
    In its comments on the NPRM, BMWED acknowledged that the NPRM 
provisions in Sec.  213.237(b) for rail inspection segment codify 
current industry practices, but stated that they thought that the 
proposal would do little to improve upon them. Rather, BMWED asserted 
that FRA's proposal would undermine the intent and effectiveness of the 
rule as it relates to service failure rates. BMWED proposed that FRA 
amend the rule to require each track owner to review rail service 
failure records annually per ``variable'' mile of track (i.e., a 
``floating mile'' within an inspection segment) for compliance with 
Sec.  213.237(a), and apply the provisions of Sec.  213.237(d) to any 
variable mile of track exceeding the service failure rates identified 
in Sec.  213.237(a). Additionally, BMWED proposed that FRA annually 
audit each

[[Page 4247]]

track owner for compliance by comparing rail failure records utilizing 
the variable mile of track concept within inspection segments.
    NTSB also asserted through its comments on the NPRM that there were 
problems with relating segment length to the ``milepost limits for the 
individual rail inspection frequency'' in this section. NTSB stated 
that track owners may need to adjust inspection frequency on portions 
of a segment and that could vary from year to year. According to NTSB, 
the track owner would have to inspect the entire segment at the same 
frequency or file with FRA to establish smaller segments with different 
inspection frequencies, which NTSB believed could provide a 
disincentive to conducting targeted inspections of problem areas.
    While FRA continues to recognize BMWED's and NTSB's concerns, FRA 
has decided not to alter the text as proposed in the NPRM. FRA is 
concerned that defining a specific segment length that would apply 
uniformly to all track owners would greatly exceed the expectations of 
minimum track safety standards and result in an excessive amount of 
segments that would be too large for the current fleet of rail 
inspection vehicles to cover. This would become too costly and 
burdensome for track owners to manage, and ultimately render this part 
of the rule ineffective.
    Nonetheless, in its comments on the NPRM, AAR disagreed with the 
proposed requirement that FRA must grant approval for any change to a 
railroad's designated test segments. AAR contended that FRA approval 
for such changes would be unnecessary, since FRA approval would not be 
required for the initial designation of a segment. Instead, AAR 
suggested that if after a railroad notifies FRA of any change to a 
designated segment, FRA detects any problem with the change, the new 
provisions proposed under Sec.  213.241 regarding FRA's review of 
inspection records would determine compliance.
    FRA supports the intent of the text as proposed in the NPRM and 
makes clear that FRA approval to change a segment length is required to 
ensure that the segment change will not have any detrimental impact on 
overall safety. To change the designation of a rail inspection segment 
or to establish a new segment pursuant to this section, a track owner 
must submit a detailed request to the FRA Associate Administrator for 
Railroad Safety/Chief Safety Officer (Associate Administrator). Within 
30 days of receipt of the submission, FRA will review the request. FRA 
will then approve, disapprove or conditionally approve the submitted 
request, and will provide written notice of its determination. 
Consequently, while track owners will be able to designate their rail 
inspection segment lengths as of the effective date of the final rule, 
FRA approval of proposed changes to these segment lengths will ensure 
that the changes do not negatively impact safety, such as a change to a 
segment length specifically to absorb an area of defect development and 
rail failure to unacceptably reduce the test inspection frequency.
    Paragraph (c). FRA redesignates former paragraph (c) as paragraph 
(e) and revises it, as discussed below. New paragraph (c) contains 
maximum time and tonnage intervals for rail inspections that are based 
on former paragraph (a) and revised. Specifically, FRA requires that 
internal rail inspections on Class 4 and 5 track, or Class 3 track with 
regularly-scheduled passenger trains or that is a hazardous materials 
route, not exceed a time interval of 370 days between inspections or a 
tonnage interval of 30 mgt between inspections, whichever is shorter. 
The 370-day interval or 30-mgt accumulation, whichever is shorter, 
provides a maximum timeframe and a maximum tonnage interval between 
tests on lines that may not be required to undergo testing on a more 
frequent basis in order to achieve the performance target rate. If 
maximum limits were not set, for example, a railroad line carrying only 
2 mgt a year could possibly go 15 years without testing. Such a length 
of time without testing was unacceptable to the Task Force. Paragraph 
(c) also provides that internal rail inspections on Class 3 track that 
is without regularly-scheduled passenger trains and not a hazardous 
materials route must be inspected at least once each calendar year, 
with no more than 18 months between inspections, or at least once every 
30 mgt, whichever interval is longer, but in no case may inspections be 
more than 5 years apart.
    In its comments on the NPRM, New Jersey Transit Rail Operations 
(NJTR) took issue with the NPRM's proposed changes to paragraph (c). 
NJTR stated that requiring a test to be completed within 370 calendar 
days would result in NJTR scheduling successive tests earlier in each 
calendar year, to the point that a test may have to be scheduled at a 
time when it is impractical to conduct a test, such as during ``leaf'' 
season, which affects commuter rail agencies in the Northeast. NJTR 
proposed that the paragraph be revised to replace both the 370-day 
interval and the 18-month interval with a uniform 15-month or 450-day 
interval.
    The Metropolitan Transit Authority (MTA) also raised concern with 
the proposed changes to paragraph (c). According to MTA, it has certain 
crossovers that trains operate over at Class 3 and Class 4 speeds that 
it currently tests once per year and it has difficulty in scheduling 
testing on these crossovers with the current high volume of service and 
availability of testing equipment. MTA proposed that paragraph (c) be 
revised to replace the 370-day interval with a uniform 400-day 
interval.
    FRA does not agree with extending the timeframe between testing on 
certain portions of Class 3 and Class 4 tracks as a result of 
difficulty in scheduling testing on these tracks due to the volume of 
service or the availability of testing equipment. It is standard 
practice that many track owners maintain a predictable and consistent 
test schedule throughout the year. However, other track owners do 
schedule their tests as determined by seasonal issues or resource 
availability. This can vary from region to region. Nonetheless, FRA 
believes that 370 days allows all track owners sufficient time to plan 
their test schedules to account for the volume of traffic, availability 
of testing equipment, change of seasons, or similar issues that they 
each may face. In particular, FRA notes that 370 days is the maximum 
inspection interval allowed and is not intended in any way to restrict 
a railroad's ability to conduct inspections more frequently. Indeed, 
FRA expects that most railroads would conduct annual inspections on a 
relatively fixed schedule, using the additional days allowed for 
scheduling flexibility.
    FRA notes that the maximum tonnage interval for testing internal 
rail defects on Class 4 and 5 track, and certain Class 3 track, has 
decreased from 40 mgt in former paragraph (a) of this section to 30 
mgt. This change results from studies showing that, while the 
predominant factor that determines the risk of rail failure is the rate 
of development of internal rail flaws, the development of internal rail 
flaws is neither constant nor predictable. Earlier studies on the 
development of transverse-oriented rail defects showed the average 
development period to be 2% of the cross-sectional area of the rail 
head per mgt, which meant that rail testing would have to be completed 
with every 50 mgt. However, the RITF took into consideration the 
conclusions of a more recent study performed by the Transportation 
Technology Center, Inc., Improved Rail Defect Detection

[[Page 4248]]

Technologies: Flaw Growth Monitoring and Service Failure 
Characterization, concerning the development of transverse-oriented 
detail fracture defects, cited in the discussion of Sec.  213.113(c), 
above. The study concluded that detail fracture transverse development 
averaged 5% of the cross-sectional area of the rail head per mgt. By 
itself, this finding would mean that testing would need to be completed 
no less frequently than every 20 mgt. However, because of the very lack 
of consistency and predictability in the development of internal rail 
flaws to allow such a firm conclusion to be drawn from the study, 
consensus was instead reached to lower this section's 40-mgt maximum 
tonnage limit between tests to a maximum of 30 mgt.
    Selecting an appropriate frequency for rail testing is a complex 
task involving many different factors including rail head wear, 
accumulated tonnage, rail surface conditions, track geometry, track 
support, steel specifications, temperature differentials, and residual 
stresses. Taking into consideration the above factors, FRA's research 
suggests that all of these criteria influence defect development (and 
ultimately rail service failure rates) and are considered in the 
determination of rail inspection frequencies when utilizing the 
performance-based, self-adaptive test method.
    For track owners without access to a sophisticated self-scheduling 
algorithm to determine testing frequencies, FRA has posted an algorithm 
program designed by the Volpe Center on the FRA Web site at 
www.fra.dot.gov. The algorithm requires five inputs: (1) Service 
failures per mile in the previous year; (2) detected defects per mile 
in the previous year; (3) annual tonnage; (4) number of rail tests 
conducted in the previous year; and (5) the targeted number of service 
failures per mile. Once the input is complete, the algorithm will take 
the average of two numbers when it calculates the number of rail tests. 
The first number will be based on the service failure rate. The second 
will be based on the total defect rate, which is the service defect 
rate plus the detected defect rate. This rate of designated tests per 
year for the designated segment will be the number of required tests 
per year enforced by FRA for the segment.
    In paragraph (c)(2), the final rule also includes the addition of 
requirements for inspection of rail intended for reuse, or ``plug 
rail.'' On March 8, 2006, FRA issued Notice of Safety Advisory 2006-02 
(SA), which promulgated recommended industry guidelines for the reuse 
of plug rail. 71 FR 11700. The recommendations in the SA consisted of 
two options for assuring that reused rail was free from internal 
defects. Specifically, FRA's SA recommended that the entire length of 
any rail that is removed from track and stored for reuse be retested 
for internal flaws. FRA also recommended that, recognizing that some 
track owners do not have the equipment to test second-hand rail in 
accordance with the recommendation above, track owners were encouraged 
to develop a classification program intended to decrease the likelihood 
that a second-hand rail containing defects would be installed back into 
active track. In addition, FRA recommended that a highly visible, 
permanent marking system be developed and used to mark defective rails 
that railroads remove from track after identifying internal defects in 
those rails.
    During some of the first RITF discussions, NTSB expressed concern 
over one aspect of FRA's SA: The guidance that provides that rail is 
suitable for reuse if it has not accumulated more than 15 mgt since its 
last valid rail test. NTSB suggested that such rail could experience up 
to 55 mgt before its next inspection if it were put in track at a 
location that had just been inspected and whose inspection frequency is 
every 40 mgt. NTSB believed that all plug rail should be immediately 
inspected prior to reuse.
    NTSB also had concerns regarding the proposed rule language in 
paragraph(c)(2), which would allow the accumulation of 30 mgt before 
ensuring replacement rail is free from detectable defects. In its 
comments on the NPRM, NTSB did not agree with FRA that some track 
owners do not have the equipment to test secondhand rail in accordance 
with NTSB's Safety Recommendation R-02-05, which NTSB believed should 
be incorporated into the final rule in its entirety. R-02-05 states 
that FRA should ``require railroads to conduct ultrasonic or other 
appropriate inspections to ensure that rail used to replace defective 
segments of existing rail is free from internal defects.''
    During RITF discussions, track owners described their method for 
assuring that rail intended for reuse is free of internal defects. In 
general, it was found that most track owners perform an ultrasonic 
inspection on rail intended for reuse while in the track and allow 
accumulation of tonnage prior to removal, or they perform an inspection 
and certification process of the rail after it has been taken out of 
service and prior to re-installation. However, they stressed that plug 
rail inspection requirements should not be overly burdensome and should 
meet the same standards as any other rail inspections per the 
regulations.
    FRA shares the track owners' concerns about creating a standard for 
rail inspection that would allow up to a 30-mgt accumulation on in-
service rail, but would mandate immediate inspection of plug rail prior 
to reuse. Consequently, the final rule requires plug rail to be 
inspected at the same frequency as conventional rail. This requirement 
therefore supersedes FRA Safety Advisory 2006-02 and codifies current 
industry practice by allowing the use of rail that has been previously 
tested to be placed in track and retested at the normal frequency for 
that track segment. Nonetheless, all else being equal, FRA does 
recommend that the rail be tested prior to installation in track for 
reuse, even though FRA believes that requiring the track owner to test 
the rail immediately prior to re-installation is too restrictive. 
Alternatively, FRA believes that the track owner should have knowledge 
of the date the rail was last tested and ensure that the 30-mgt maximum 
tonnage accumulation is not exceeded prior to retesting the rail. In 
this regard, paragraph (c)(2) requires that the track owner be able to 
verify that any plug installed after the effective date of this final 
rule has not accumulated more than a total of 30 mgt in previous and 
new locations since its last internal rail flaw test, before the next 
test on the rail required by this section is performed. Thereafter, the 
rail must be tested in accordance with the test frequency of the 
designated segment in which it is installed.
    FRA notes that the AAR, in its comments on the NPRM, requested that 
the verification language proposed in paragraph (c)(2) be revised to 
clarify that the regulation applies only to plug rail installed after 
the regulation's effective date. Otherwise, AAR believed the text as 
proposed in the NPRM would require railroads to identify each location 
where rail was installed in the past and retest each plug location, 
causing extra burden and expense.
    FRA makes clear that it is not FRA's intent to require track owners 
to identify each location where rail was installed prior to the 
effective date of the final rule and retest each plug location, which 
would be too costly and burdensome for most track owners. FRA is aware 
that the majority of the plug rails that were previously installed have 
been absorbed into the track owners' current inspection cycles and have 
been tested while in track. Therefore, a requirement to re-inspect the 
previously installed plug rails would be unnecessarily restrictive and 
would not

[[Page 4249]]

have a significant impact on safety. Accordingly, paragraph (c)(2) in 
the final rule makes clear that the verification requirement applies 
only to plug rail installed after the regulation's effective date. 
Similarly, in preparing the final rule FRA has modified paragraph 
(c)(3) to make clear that the provision applies only after the 
regulation's effective date.
    Paragraph (d). Former paragraph (d) is redesignated as paragraph 
(g) and revised, as discussed below. New paragraph (d) contains 
restrictions that apply if the service failure target rate identified 
in paragraph (a) is not achieved on a segment of track for two 
consecutive twelve-month periods. FRA recognizes that the service 
failure target rate may be exceeded within one defined twelve-month 
period. Therefore, the track owner is allowed an additional year to 
adjust its rail integrity management program to bring the service 
failure rate on the offending track segment into compliance with the 
requirements. If the service failure target rate is exceeded for two 
consecutive twelve-month periods, the track owner is required to comply 
with the requirements in paragraph (d) for either a minimum rail test 
frequency or a speed restriction on the offending track segment.
    In its comments on the NPRM, NTSB disagreed with the language 
proposed in paragraph (d)(1) concerning the service failure rate. NTSB 
stated that the performance-based, risk management approach proposed in 
the NPRM may be a step in the right direction to mitigate risk of rail 
failure. However, according to NTSB, in order to be consistent with 
damage tolerance principles, the algorithms and methods used by the 
track owners should have the capability to identify areas of high 
stress that would suggest worn rail conditions, poor track support, 
rail with high accumulated tonnage, or rail with high residual 
stresses. NTSB stated that there was no systematic approach in the NPRM 
that would assure that FRA could use the data to ensure acceptable 
performance. Consequently, NTSB recommended that track owners should be 
required to regularly report service failure information to FRA and 
that FRA should review service failure data on a regular basis not only 
across entire segments to assess the overall performance of the track 
owner as proposed in the NPRM, but also in shorter lengths of track to 
assess track owner performance in timely identification and remediation 
of areas that are at high risk of failure.
    In the final rule, FRA continues to support the rule text as 
proposed in the NPRM. FRA believes that the remedial action for 
inspection frequency in paragraph (d)(1)(i), which requires that the 
segment be tested every 10 mgt if the performance target is not met for 
two consecutive years, ensures that an optimal amount of inspection is 
conducted in order to capture areas where accelerated defect 
development is occurring and not restrict railroads so significantly 
that they cannot inspect other segments as required by paragraph (a). 
Further, during RITF meetings there was much discussion that the 
practice of increased test frequency on localized areas would lead to 
unmanageable amounts of test frequencies. The AAR noted that there is a 
limited supply of inspection vehicle resources and test operators, and 
that a greatly increased amount of test frequencies would not be 
achievable by the railroads. FRA agrees, and notes that its rail 
integrity specialists will be reviewing service failure data on a 
regular basis. During these reviews, FRA will seek to identify any 
instances where shorter lengths of track have high failure rates and 
will follow up as necessary.
    Paragraph (e). As noted above, FRA is redesignating former 
paragraph (c) as paragraph (e) with some revision. Specifically, in 
paragraph (e) FRA requires that each defective rail be marked with a 
highly visible marking on both sides of the web and base except that, 
where a side or sides of the web and base are inaccessible because of 
permanent features, the highly visible marking may be placed on or next 
to the head of the rail. This option to mark the rail head in certain 
situations provides an alternative to the railroad in areas where the 
web and base may not be accessible. Former paragraph (e) is 
redesignated as paragraph (h) and revised, as discussed below.
    Paragraph (f). As stated above, FRA redesignates former paragraph 
(b) as paragraph (f) without substantive change.
    Paragraph (g). Paragraph (g) addresses circumstances where a valid 
search for internal rail defects cannot be made because of rail surface 
conditions, equipment issues, or other factors. Several types of 
technologies are presently employed to continuously search for internal 
rail defects, some capable of displaying and monitoring search signal 
returns. A continuous search is intended to mean an uninterrupted 
search by whatever technology is being used, so that there are no 
segments of rail that go untested. If the test is interrupted, e.g., as 
a result of rail surface conditions that inhibit the transmission or 
return of the signal, then the test over that segment of rail may not 
be valid because it was not continuous. Therefore, in the final rule, a 
valid search for internal rail defects is defined in paragraph (j), 
below, as a ``valid test'' during which the equipment is performing as 
intended and equipment responses are interpreted by a qualified 
operator as defined in Sec.  213.238. In conducting a valid search, the 
operator needs to determine that the test has not been compromised due 
to environmental contamination, rail conditions, or test equipment 
performance.
    Paragraph (h). FRA redesignates former paragraph (e) as paragraph 
(h) and revises it. In paragraph (h), FRA specifies the options 
available to a railroad following a non-test. At least one of these 
options must be exercised prior to the expiration of the time or 
tonnage limits as specified in paragraph (a) or (c) of this section.
    Paragraph (i). FRA adds new paragraph (i) to require that the rail 
flaw detector car operator be qualified as defined in new Sec.  
213.238, ``Qualified operator,'' which prescribes minimum training, 
evaluation, and documentation requirements for personnel performing in 
this occupation.
    Paragraph (j). FRA adds paragraph (j) to provide new definitions 
for terms that are used in this section. These terms are applicable 
only to this section.
    Hazardous materials route. FRA defines ``hazardous materials 
route'' for purposes of determining the appropriate service failure 
target rate pursuant to paragraph (a) of this section. ``Hazardous 
materials route'' means track over which a minimum of 10,000 car loads 
or intermodal portable tank car loads of hazardous materials as defined 
in 49 CFR 171.8 travel over a period of one calendar year; or track 
over which a minimum of 4,000 car loads or intermodal portable tank car 
loads of the hazardous materials specified in 49 CFR 172.820 travel, in 
a period of one calendar year.
    In its comments on the NPRM, UP raised concern that the definition 
of ``hazardous materials route'' proposed in the NPRM did not mirror 
the intent of the RITF. UP believed that, as proposed in the NPRM, the 
definition would apply to certain movements of hazardous materials over 
``any track of any class,'' when the intent was to apply the definition 
only to Class 3 or higher track classes.
    In the final rule, FRA defines ``hazardous materials route'' 
consistent with the RITF's intent that the term apply only to track 
Classes 3 through 5, as the meaning was inadvertently changed in 
preparing the NPRM. However, FRA believes that it is

[[Page 4250]]

unnecessary and potentially confusing to specify in the definition that 
the term applies only to track Classes 3 through 5. The definition 
applies only to specific provisions of Sec.  213.237 and only to Class 
3, 4, or 5 track, or all three depending on the circumstances. 
Consequently, removing any mention of class of track in the definition 
is clearer and more concise. Separately, FRA notes that the RSAC 
consensus language recommended that the rule apply to those tracks 
carrying the defined hazardous materials ``over a period of one year,'' 
which could be construed as a rolling 12-month timeframe. To ensure 
that the interpretation of this period is consistent, and applied as 
intended, the definition makes clear that this period is ``one calendar 
year.''
    Plug rail. FRA defines ``plug rail'' to mean a length of rail that 
has been removed from one track location and stored for future use as a 
replacement rail at another location.
    Service failure. FRA defines ``service failure'' to mean a broken 
rail occurrence, the cause of which is determined to be a compound 
fissure, transverse fissure, detail fracture, or vertical split head. 
Only the listed fatigue defects, i.e., compound fissure, transverse 
fissure, detail fracture, or vertical split head, are required to be 
utilized for determining the fatigue service failure rate. Since other 
defect types are more likely to go undetected, and how well defects can 
be detected is influenced by conditions other than fatigue, other 
defect types are not included in the service failure rate calculation.
    Valid search. FRA provides a definition of ``valid search'' to help 
ensure that valid rail flaw detection tests under this section are 
conducted. Under this definition, the test equipment must perform as 
intended and equipment responses must be properly interpreted by a 
qualified operator as defined in Sec.  213.238.

Section 213.238 Qualified Operator

    FRA adds this new section to require that any entity that conducts 
rail flaw detection have a documented training program to ensure that a 
rail flaw detection equipment operator is qualified to operate each of 
the various types of equipment currently utilized in the industry for 
which he or she is assigned, and that proper training is provided when 
new rail flaw detection technologies are utilized.
    In its comments on the NPRM, the AAR noted that this proposed 
section was inconsistent in specifying who bears the responsibility for 
evaluating a rail flaw detector car operator's training. The AAR 
believed the NPRM suggested that railroads must ensure that there are 
training programs in place and qualified operators but that the 
operators' employers are responsible for actually providing the 
training and qualifying the operators. The AAR also noted that the 
responsibility of the employer of the personnel operating the rail flaw 
detection equipment is to provide training and qualification 
requirements, conduct training and testing, and supply training and 
qualification credentials. The AAR stated that in many cases the rail 
flaw detection equipment is proprietary and that the railroads would 
have neither the information nor the expertise necessary for such 
training and qualification. The AAR therefore recommended that FRA 
clarify Sec.  213.238 to state that the provider of the rail flaw 
detection operator is responsible for the training and qualification 
requirements.
    FRA is aware that it is the responsibility of the employer of the 
personnel operating the rail flaw detection equipment to develop 
training and qualification requirements, conduct training and testing, 
and supply training and qualification credentials. FRA concurs that the 
rail flaw detection equipment is often proprietary and that the track 
owner may not have the information or the expertise necessary for such 
training and qualification. For that reason, the final rule imposes the 
responsibility for implementing this section principally on the 
provider of the rail flaw detection equipment, which may of course be 
the track owner itself. However, FRA does believe that it is the 
responsibility of the track owner to reasonably ensure that any 
operator of rail flaw detection equipment over its track is qualified 
to conduct an inspection in accordance with the training and 
qualification requirements in this section, because the track owner is 
ultimately responsible for the conformance of its track and rail with 
the requirements of the Track Safety Standards. This responsibility is 
incorporated into paragraph (a).
    As provided in paragraph (b), each operator of rail flaw detection 
equipment must have documentation from his or her employer that 
designates his or her qualifications to perform the various functions 
associated with the flaw detection process. Specifically, the 
requirements help ensure that each operator is able to conduct a valid 
search for internal rail flaws, determine that the equipment is 
functioning properly at all times, properly interpret the test results, 
and understand test equipment limitations.
    In paragraph (c), the operator must receive a minimum amount of 
documented, supervised training according to the rail flaw detection 
equipment provider's training program. FRA understands that this 
training may not be entirely held within the classroom environment and 
is in agreement that the employer should have the flexibility to 
determine the training process that is appropriate for demonstrating 
compliance. The operator is required to demonstrate proficiency for 
each type of equipment the employer intends the operator to use, and 
documentation must be available to FRA to verify the qualification.
    As provided in paragraph (d), operator reevaluation and, as 
necessary, refresher training is required in accordance with the 
documented training program. The employer is provided flexibility to 
determine the process used in reevaluating qualified operators, 
including the frequency of operator reevaluation. The reevaluation 
process shall require that the employee successfully complete a 
recorded examination and demonstrate proficiency to the employer on the 
specific equipment type(s) to be operated. The reevaluation and 
recurrent training may also consist of a periodic review of test data 
submitted by the operator.
    In paragraph (e), FRA requires that the employer maintain a written 
or electronic record of each operator's qualification. The record must 
include the operator's name, type of equipment qualification, date of 
initial qualification, and most recent re-evaluation of his or her 
qualifications, if any. This paragraph is intended to ensure consistent 
recordkeeping and allow FRA to accurately verify compliance.
    FRA provides in paragraph (f) that rail flaw detection equipment 
operators who have demonstrated proficiency in the operation of rail 
flaw detection equipment prior to publication of this final rule be 
considered qualified to operate the equipment as designated by the 
employer. Such an operator must thereafter undergo reevaluation in 
accordance with paragraph (d) of this section. Any employee that is 
considered for the position of qualified operator subsequent to the 
publication of this final rule must be qualified in accordance with 
paragraph (c) of this section.
    Finally, in paragraph (g) FRA requires that the records 
specifically associated with the operator qualification process be 
maintained at a designated location and made available to FRA as 
requested, to assist in verifying compliance.

[[Page 4251]]

Section 213.241 Inspection Records

    This section contains requirements for keeping, handling, and 
making available records of track inspections required in accordance 
with subpart F.
    Paragraphs (a) and (b) remain unchanged.
    FRA revises paragraph (c) to require that internal rail inspection 
records include the date of inspection, track identification and 
milepost for each location tested, type of defect found and size if not 
removed prior to the resumption of rail traffic, and initial remedial 
action as required by Sec.  213.113. Paragraph (c) also requires that 
the records document all tracks that do not receive a valid test 
pursuant to Sec.  213.237(g). These changes respond to a recommendation 
arising out of the report by DOT's OIG, ``Enhancing the Federal 
Railroad Administration's Oversight of Track Safety Inspections,'' 
referenced above. The OIG recommended that FRA ``[r]evise its track 
safety regulations for internal rail flaw testing to require the 
railroads to report all track locations (milepost numbers or track 
miles) covered during internal rail flaw testing.'' See OIG report at 
p. 8. FRA has revised this section, accordingly. The last sentence of 
former paragraph (c) is moved to paragraph (d), as discussed below.
    FRA redesignates former paragraph (d) as paragraph (f). In its 
place, FRA slightly modifies the last sentence in former paragraph (c) 
and redesignates it as paragraph (d). Paragraph (d) requires the track 
owners to maintain the rail inspection records at least for two years 
after an inspection has occurred and for one year after the initial 
remedial action has been taken. This information is vital for FRA to 
determine compliance with the rail integrity and inspection 
requirements in Sec.  213.113 and Sec.  213.237.
    FRA redesignates former paragraph (e) as paragraph (g) without 
substantive change. In new paragraph (e), rail inspection records must 
be maintained to demonstrate compliance with Sec.  213.237(a). This 
requirement is intended to provide sufficient information to determine 
that accurate data concerning detected defects is utilized by the 
railroads as input into the performance-based test frequency formula. 
During RITF discussions, track owners asked that FRA requests for 
records of rail inspections demonstrating compliance with required test 
frequencies be made by a designated FRA Rail Integrity Specialist; each 
track owner would then designate a person within its organization whom 
the Rail Integrity Specialists would contact when requesting records of 
rail inspections. FRA agrees that this suggested approach is an 
efficient way to obtain inspection records and FRA intends to adopt 
this approach through guidance in FRA's Track Safety Compliance Manual.
    As discussed above, FRA redesignates former paragraph (d) as 
paragraph (f) without substantive change. Paragraph (f) provides that 
track inspection records be made available for inspection and copying 
by FRA upon request.
    Finally, as discussed above, FRA redesignates former paragraph (e) 
as paragraph (g) without substantive change. Paragraph (g) contains the 
requirements for maintaining and retrieving electronic records of track 
and rail inspections.
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. 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). Accordingly, FRA is 
amending the penalty schedule to reflect the addition of a new section 
in this part, Sec.  213.238, Qualified operator.

VIII. Regulatory Impact and Notices

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

    This final rule has been evaluated in accordance with existing 
policies and procedures and determined to be non-significant under both 
Executive Orders 12866 and 13563 and DOT policies and procedures. See 
44 FR 11034; February 26, 1979. FRA has prepared and placed in the 
docket a regulatory evaluation addressing the economic impact of this 
final rule.
    As part of the regulatory evaluation, FRA has assessed the 
quantitative costs from the implementation of this rule and has a high 
degree of confidence that the majority of the rail industry is already 
in compliance with the new requirements; therefore, there are minimal 
costs associated with this rule. FRA's analysis follows DOT's revised 
``Guidance on the Economic Value of a Statistical Life in US Department 
of Transportation Analyses,'' published in March 2013. Based on real 
wage growth forecasts from the CBO, DOT's guidance estimates that there 
will be 1.07 percent annual growth rate in median real wages over a 20-
year period (2014-2034). Real wages represent the purchasing power of 
nominal wages. FRA assumed an income elasticity of 1.0 and adjusted the 
Value of Statistical Life (VSL) in future years in the same way. VSL is 
the basis for valuing avoided casualties. FRA's analysis further 
accounts for expected wage growth by adjusting the taxable wage 
component of labor costs. Other non-labor hour-based costs and benefits 
are not impacted.
    In analyzing the benefits of the final rule, FRA estimates that 
over a 20-year period the industry will save $62.9 million, with a 
present value (PV), discounted at 7 percent, of $35.5 million. This 
cost-benefit analysis shows that the potential benefits from the rule 
will exceed the total costs. In fact, the estimated benefit shows an 
overall increase of 2.6% compared to the estimates provided in the 
NPRM. Part of this increase is due to the application of the CBO's real 
wage forecast, which adjusts the annual growth rate by 1.07 percent 
annually. FRA also determined that the initial implementation year 
would be 2014; therefore, all wages have been adjusted accordingly. The 
change in the initial implementation year accounts for the remainder of 
the increased benefits.
    FRA considered the industry costs associated with the final rule, 
which include: New requirements for effective rail inspection 
frequencies, changes to rail flaw remedial actions, minimum 
qualification requirements for rail flaw detection equipment operators, 
and new requirements for rail inspection records. The bulk of this 
regulation revises FRA's Track Safety Standards by codifying the 
industry's current good practices. The only entities that may be 
impacted by portions of this rule are Class III railroads with Class 3, 
4, or 5 track. For more details, please see the regulatory evaluation 
found in the docket.
    FRA anticipates that this rulemaking will enhance safety by helping 
to allocate more time to rail inspections, increasing the likelihood of 
detecting more serious rail defects sooner, ensuring that qualified 
operators conduct rail inspections, and including more specific 
information in rail inspection records for analysis and compliance 
purposes. The main benefit associated with this rule is derived from 
granting railroads a four-hour window to verify certain defects found 
during an inspection. The defects subject to the deferred verification 
allowance are considered less likely to cause immediate rail failure, 
and require less restrictive remedial action. However, without the 
additional time to verify these defects, railroads must stop their 
inspections to avoid a possible civil penalty. The additional time both 
permits railroads to continue their

[[Page 4252]]

inspections and search for more serious defects and avoids the cost of 
paying their internal inspection crews or renting a rail flaw detector 
car an additional half day, saving the industry approximately $8,400 
per day. FRA believes the value of the anticipated benefits will easily 
justify the cost of implementing the final rule.

B. Regulatory Flexibility Act and Executive Order 13272

    To ensure potential impacts of rules on small entities are properly 
considered, FRA has developed this final rule in accordance with 
Executive Order 13272 (``Proper Consideration of Small Entities in 
Agency Rulemaking'') and DOT's procedures and policies to promote 
compliance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et 
seq.).
    The Regulatory Flexibility Act requires an agency to review 
regulations to assess their impact on small entities. An agency must 
prepare a regulatory flexibility analysis (RFA) unless it determines 
and certifies that a rule, if promulgated, would not have a significant 
economic impact on a substantial number of small entities.
    This final rule amends the Federal Track Safety Standards to 
improve rail flaw detection processes and promote safety in railroad 
operations. In particular, FRA is specifying minimum qualification 
requirements for rail flaw detection equipment operators, as well as 
revising the requirements for effective rail inspection frequencies, 
rail flaw remedial actions, and rail inspection records. FRA is also 
removing regulatory requirements concerning joint bar fracture 
reporting.
    (1) Description of Regulated Entities and Impacts: The ``universe'' 
of the entities to be considered generally includes only those small 
entities that are reasonably expected to be directly regulated by this 
action. This final rule directly affects Class I, Class II, and Class 
III railroads that operate over Class 3, 4, or 5 track.
    ``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines 
a ``small entity'' as having the same meaning as ``small business 
concern'' under section 3 of the Small Business Act. This includes any 
small business concern that is independently owned and operated, and is 
not dominant in its field of operation. Section 601(4) likewise 
includes within the definition of this term not-for-profit enterprises 
that are independently owned and operated, and are not dominant in 
their field of operation. 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.'' 
Additionally, 5 U.S.C. 601(5) defines as ``small entities'' governments 
of cities, counties, towns, townships, villages, school districts, or 
special districts with populations less than 50,000.
    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Pursuant to that authority, FRA has published a final 
statement of agency policy that formally establishes ``small entities'' 
or ``small businesses'' as being railroads, contractors, and hazardous 
materials shippers that meet the revenue requirements of a Class III 
railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less 
in inflation-adjusted annual revenues; and commuter railroads or small 
governmental jurisdictions that serve populations of 50,000 or less. 
See 68 FR 24891, May 9, 2003, codified at appendix C to 49 CFR part 
209. The $20 million-limit is based on the Surface Transportation 
Board's revenue threshold for a Class III railroad. Railroad revenue is 
adjusted for inflation by applying a revenue deflator formula in 
accordance with 49 CFR 1201.1-1. FRA is using this definition for this 
rulemaking.
    Railroads: FRA regulates approximately 782 railroads. There are 7 
Class I freight railroads and 10 Class II railroads, none of which are 
considered to be small. There are a total of 29 commuter/passenger 
railroads, including Amtrak, affected by this rule. However, most of 
the affected commuter railroads are part of larger public 
transportation agencies that receive Federal funds and serve major 
jurisdictions with populations greater than 50,000.
    The level of costs incurred by each railroad should generally vary 
in proportion to the number of miles of Class 3, 4, or 5 track. For 
instance, railroads with less track should have lower overall costs 
associated with implementing the standards. There are 738 Class III 
railroads, of which, only 58 are affected by this rule. However, FRA 
has confirmation that the practices of 51 of these small railroads 
already conform with the requirements of this regulation. FRA believes 
that the practices of the remaining 7 Class III railroads also conform 
with the requirements of this regulation, and that no small entity will 
be negatively impacted by this regulation as a result. FRA published 
this analysis in the Initial Regulatory Flexibility Analysis (IRFA) 
that accompanied the NPRM and requested comments. No comments were 
received on FRA's analysis of the rule's impact on small entities. Even 
if the 7 Class III railroads were impacted, the economic impact on them 
would likely not be significant.
    If these 7 small railroads that FRA believes are in compliance with 
the rule are in fact not in compliance, the added costs would be 
minimal. Seven railroads would not be a substantial number of the 738 
Class III railroads. FRA estimates that it would cost a Class III 
railroad $2,000 per day to rent a rail flaw detector car. The average 
Class III railroad that owns Class 3, 4, or 5 track has approximately 
70 miles of track. FRA estimates it would take 3 days to inspect each 
railroad's entire track. The total cost per railroad would be $6,000 
per year, for the base year. FRA has a high level of confidence that 
these railroads are already inspecting their track at least once a 
year. However, if these entities are not in compliance, FRA believes a 
cost of $6,000 per year would not be a significant economic impact on 
any railroad.
    During the public comment period following the NPRM, FRA did not 
receive any comments discussing the IRFA or Executive Order 13272. FRA 
certifies that the final rule will not have any significant economic 
impact on the competitive position of small entities, or on the small 
entity segment of the railroad industry as a whole.
    (2) Certification: Pursuant to the Regulatory Flexibility Act (5 
U.S.C. 605(b)), FRA certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities. 
Although a substantial number of small railroads will be affected by 
the final rule, none of these entities will be significantly impacted.

C. Paperwork Reduction Act

    The information collection requirements in this final rule 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 sections that contain the current and new information collection 
requirements and the estimated time to fulfill each requirement are as 
follows:

[[Page 4253]]



----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
           CFR Section             Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
213.4--Excepted track:
    --Designation of track as      236 railroads......  20 orders..........  15 minutes.........               5
     excepted.
    --Notification to FRA about    236 railroads......  15 notifications...  10 minutes.........               3
     removal of excepted track.
213.5--Responsibility for          728 railroads......  10 notifications...  8 hours............              80
 compliance.
213.7--Designation of qualified
 persons to supervise certain
 renewals and inspect track:
    --Designations...............  728 railroads......  1,500 names........  10 minutes.........             250
    --Employees trained in CWR     37 railroads.......  80,000 tr.           8 hours............         640,000
     procedures.                                         employees.
    --Written authorizations and   37 railroads.......  80,000 auth. +       10 minutes + 60              93,333
     recorded exams.                                     80,000 exams.        minutes.
    --Designations (partially      37 railroads.......  250 names..........  10 minutes.........              42
     qualified) under paragraph
     (c) of this section.
213.17--Waivers..................  728 railroads......  6 petitions........  24 hours...........             144
213.57--Curves; elevation and
 speed limitations:
    --Request to FRA for vehicle   728 railroads......  2 requests.........  40 hours...........              80
     type approval.
    --Written notification to FRA  728 railroads......  2 notifications....  8 hours............              16
     prior to implementation of
     higher curving speeds.
    --Written consent of track     728 railroads......  2 written consents.  45 minutes.........               2
     owners obtained by railroad
     providing service over that
     track.
213.110--Gage restraint
 measurement systems (GRMS):
    --Implementing GRMS--notices   728 railroads......  5 notifications + 1  45 minutes/4 hours.               8
     & reports.                                          tech rpt.
    --GRMS vehicle output reports  728 railroads......  50 reports.........  5 minutes..........               4
    --GRMS vehicle exception       728 railroads......  50 reports.........  5 minutes..........               4
     reports.
    --GRMS/PTLF--procedures for    728 railroads......  4 proc. docs.......  2 hours............               8
     data integrity.
    --GRMS training programs/      728 railroads......  2 programs + 5       16 hours...........             112
     sessions.                                           sessions.
    --GRMS inspection records....  728 railroads......  50 records.........  2 hours............             100
213.118--Continuous welded rail
 (CWR); plan review and approval:
    --Plans w/written procedures   279 railroads......  279 plans..........  4 hours............           1,116
     for CWR.
    --Notification to FRA and RR   279 RRs/80,000       279 + 80,000         15 minutes + 2                2,737
     employees of CWR plan          employees.           notifications.       minutes.
     effective date.
    --Written submissions after    728 railroads......  20 written           2 hours............              40
     plan disapproval.                                   submissions.
    --Final FRA disapproval and    728 railroads......  20 amended plans...  1 hour.............              20
     plan amendment.
213.119--Continuous welded rail
 (CWR); plan contents:
    --Annual CWR training of       37 railroads.......  80,000 tr.           30 minutes.........          40,000
     employees.                                          employees.
    --Recordkeeping..............  279 railroads......  2,000 records......  10 minutes.........             333
    --Recordkeeping for CWR rail   279 railroads......  360,000 rcds.......  2 minutes..........          12,000
     joints.
    --Periodic records for CWR     279 railroads......  480,000 rcds.......  1 minute...........           8,000
     rail joints.
    --Copy of track owner's CWR    279 railroads......  279 manuals........  10 minutes.........              47
     procedures.
213.233--Track inspections--       728 railroads......  12,500 notations...  1 minute...........             208
 Notations.
213.237--Inspection of rail (New
 Requirements):
    --Detailed request to FRA to   10 railroads.......  50 requests........  15 minutes.........              13
     change designation of a rail
     inspection segment or
     establish a new segment.
    --Notification to FRA and all  10 railroads.......  50 notices + 120     15 minutes.........              43
     affected employees of                               notices/bulletins.
     designation's effective date
     after FRA's approval/
     conditional approval.
    --Notice to FRA that service   10 railroads.......  12 notices.........  15 minutes.........               3
     failure rate target in
     paragraph (a) of this
     section is not achieved.
    --Explanation to FRA as to     10 railroads.......  12 letters of        15 minutes.........               6
     why performance target was                          explanation + 12
     not achieved and provision                          plans.
     to FRA of remedial action
     plan.
213.241--Inspection records......  728 railroads......  1,542,089 records..  Varies.............       1,672,941
213.303--Responsibility for        2 railroads........  1 notification.....  8 hours............               8
 compliance.
213.305--Designation of qualified  2 railroads........  20 designations....  10 minutes.........               3
 individuals; general
 qualifications Designations
 (partially qualified).
213. 317--Waivers................  2 railroads........  1 petition.........  80 hours...........              80
213.329--Curves; elevation and
 speed limitations:
    --FRA approval of qualified    2 railroads........  2 documents........  80 hours...........             160
     vehicle types based on
     results of testing.

[[Page 4254]]

 
    --Written notification to FRA  2 railroads........  3 notifications....  40 hours...........             120
     prior to implementation of
     higher curving speeds.
    --Written consent of other     2 railroads........  3 written consents.  45 minutes.........               2
     affected track owners
     obtained by railroad.
213.333--Automated vehicle-based
 inspection systems:
    --Request for atypical         10 railroads.......  1 request..........  8 hours............               8
     measurements.
    --TGMS output/exception        10 railroads.......  18 reports.........  20 hours...........             360
     reports.
    --Track/vehicle performance    10 railroads.......  13 reports/records.  20 hours...........             260
     measurement system: copies
     of most recent exception
     reports/additional records.
    --Notification to track        10 railroads.......  10 notices.........  40 hours...........             400
     personnel when onboard
     accelerometers indicate
     track related problem.
    --Requests for an alternate    10 railroads.......  10 requests........  40 hours...........             400
     location for device
     measuring lateral
     accelerations.
    --Report to FRA providing      10 railroads.......  4 reports..........  8 hours............              32
     analysis of collected
     monitoring data.
213.341--Initial inspection of
 new rail and welds:
    --Mill inspection............  2 railroads........  2 reports..........  16 hours...........              32
    --Welding plant inspection...  2 railroads........  2 reports..........  16 hours...........              32
    --Inspection of field welds..  2 railroads........  125 records........  20 minutes.........              42
213.343--Continuous welded rail    2 railroads........  150 records........  10 minutes.........              25
 (CWR).
213.345--Vehicle/track system
 qualification:
    --Vehicle qualification        10 railroads.......  10 programs........  120 hours..........           1,200
     program for all vehicle
     types operating at track
     Class 6 speeds or above or
     at curving speeds above 5
     inches of cant deficiency.
    --Previously qualified         10 railroads.......  10 programs........  80 hours...........             800
     vehicle types qualification
     programs.
    --Written consent of other     10 railroads.......  1 written consent..  8 hours............               8
     affected track owners
     obtained by railroad.
213.347--Automotive or railroad
 crossings at grade:
    --Protection plans...........  1 railroad.........  2 plans............  8 hours............              16
213.369--Inspection records:
    --Record of inspection of      2 railroads........  500 records........  1 minute...........         8 hours
     track.
    --Internal defect inspections  2 railroads........  50 records.........  5 minutes..........               4
     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. For information or a copy of the 
paperwork package that is being submitted to OMB, please contact Mr. 
Robert Brogan, Information Clearance Officer, Federal Railroad 
Administration, at 202-493-6292 ([email protected]), or Ms. 
Kimberly Toone, Records Management Officer, Federal Railroad 
Administration, at 202-493-6132 ([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, 
Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be 
sent via email to the Office of Management and Budget at the following 
address: [email protected]. 
mailto:[email protected]
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication.
    FRA cannot impose a penalty on persons for violating information 
collection requirements that 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 final rule 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 final rule that 
might trigger the need for a more detailed environmental review. As a 
result, FRA finds that this final rule is not a major Federal action

[[Page 4255]]

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 
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 analyzed this final rule in accordance with the principles 
and criteria contained in Executive Order 13132. This final rule will 
not have a substantial direct effect on the States, on the relationship 
between the Federal government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
FRA has also determined that this final rule will not impose 
substantial direct compliance costs on State and local governments. 
Therefore, the consultation and funding requirements of Executive Order 
13132 do not apply.
    Moreover, FRA notes that RSAC, which recommended the majority of 
this final rule, has as permanent members two organizations 
representing State and local interests: AASHTO and ASRSM. Both of these 
State organizations concurred with the RSAC recommendations made in 
this rulemaking. RSAC regularly provides recommendations to the 
Administrator of FRA 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 final 
rule from these representatives or from any other representatives of 
State government.
    However, this final rule could have preemptive effect by operation 
of law under 49 U.S.C 20106 (sec. 20106). 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 hazard'' exception to section 
20106.
    In sum, FRA has analyzed this final rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this final rule has no 
federalism implications, other than the possible preemption of State 
laws under sec. 20106. Accordingly, FRA has determined that preparation 
of a federalism summary impact statement for this final rule is not 
required.

F. Unfunded Mandates Reform Act of 1995

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

G. Energy Impact

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

H. Privacy Act Statement

    Anyone is able to search the electronic form of any comment or 
petition for reconsideration received into any of DOT's dockets by the 
name of the individual submitting the comment or petition (or signing 
the comment or petition, if submitted on behalf of an association, 
business, labor union, etc.). Please see the privacy notice at http://www.regulations.gov/#!privacyNotice. 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://www.dot.gov/privacy.html.

List of Subjects in 49 CFR Part 213

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

The Rule

    For the reasons discussed in the preamble, 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 
1.89.

[[Page 4256]]

Subpart A--General

0
2. Revise Sec.  213.3(b) to read as follows:


Sec.  213.3  Application.

* * * * *
    (b) This part does not apply to track:
    (1) Located inside an installation that is not part of the general 
railroad system of transportation (i.e., a plant railroad). As used in 
this part, a plant railroad means a plant or installation that owns or 
leases a locomotive, uses that locomotive to switch cars throughout the 
plant or installation, and is moving goods solely for use in the 
facility's own industrial processes. The plant or installation could 
include track immediately adjacent to the plant or installation if the 
plant railroad leases the track from the general system railroad and 
the lease provides for (and actual practice entails) the exclusive use 
of that track by the plant railroad and the general system railroad for 
purposes of moving only cars shipped to or from the plant. A plant or 
installation that operates a locomotive to switch or move cars for 
other entities, even if solely within the confines of the plant or 
installation, rather than for its own purposes or industrial processes, 
will not be considered a plant railroad because the performance of such 
activity makes the operation part of the general railroad system of 
transportation. Similarly, this exclusion does not apply to track over 
which a general system railroad operates, even if that track is located 
within a plant railroad;
    (2) Used exclusively for tourist, scenic, historic, or excursion 
operations that are not part of the general railroad system of 
transportation. As used in this part, tourist, scenic, historic, or 
excursion operations that are not part of the general railroad system 
of transportation means a tourist, scenic, historic, or excursion 
operation conducted only on track used exclusively for that purpose 
(i.e., there is no freight, intercity passenger, or commuter passenger 
railroad operation on the track); or
    (3) Used exclusively for rapid transit operations in an urban area 
that are not connected to the general railroad system of 
transportation.

Subpart D--Track Structure

0
3. Revise Sec.  213.113 to read as follows:


Sec.  213.113  Defective rails.

    (a) When an owner of track learns that a rail in the track contains 
any of the defects listed in the table contained in paragraph (c) of 
this section, a person designated under Sec.  213.7 shall determine 
whether the track may continue in use. If the designated person 
determines that the track may continue in use, operation over the 
defective rail is not permitted until--
    (1) The rail is replaced or repaired; or
    (2) The remedial action prescribed in the table contained in 
paragraph (c) of this section is initiated.
    (b) When an owner of track learns that a rail in the track contains 
an indication of any of the defects listed in the table contained in 
paragraph (c) of this section, the track owner shall verify the 
indication. The track owner must verify the indication within four 
hours, unless the track owner has an indication of the existence of a 
defect that requires remedial action A, A2, or B identified in the 
table contained in paragraph (c) of this section, in which case the 
track owner must immediately verify the indication. If the indication 
is verified, the track owner must--
    (1) Replace or repair the rail; or
    (2) Initiate the remedial action prescribed in the table contained 
in paragraph (c) of this section.
    (c) A track owner who learns that a rail contains one of the 
following defects shall prescribe the remedial action specified if the 
rail is not replaced or repaired, in accordance with this paragraph's 
table:

                                                                  Remedial Action Table
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      Length of defect (inch(es))         Percentage of existing rail head cross-
                              ------------------------------------------     sectional area weakened by defect     If the defective rail is not replaced
            Defect                                                      ------------------------------------------ or repaired, take the remedial action
                                    More than        But not more than        Less than        But not less than             prescribed in note
--------------------------------------------------------------------------------------------------------------------------------------------------------
Compound Fissure.............  ...................  ...................  70.................  5..................  B.
                               ...................  ...................  100................  70.................  A2.
                               ...................  ...................  ...................  100................  A.
Transverse Fissure...........  ...................  ...................  25.................  5..................  C.
Detail Fracture..............  ...................  ...................  60.................  25.................  D.
Engine Burn Fracture.........  ...................  ...................  100................  60.................  A2, or [E and H].
Defective Weld...............  ...................  ...................  ...................  100................  A, or [E and H].
Horizontal Split Head
Vertical Split Head
    Split Web................  1..................  2..................  ...................  ...................  H and F.
    Piped Rail...............  2..................  4..................  ...................  ...................  I and G.
    Head Web Separation......  4..................  ...................  ...................  ...................  B.
    Defective Weld             (\1\)..............  (\1\)..............  ...................  ...................  A.
     (Longitudinal).
Bolt Hole Crack..............  \1/2\..............  1..................  ...................  ...................  H and F.
                               1..................  1\1/2\.............  ...................  ...................  H and G.
                               1\1/2\.............  ...................  ...................  ...................  B.
                               (\1\)..............  (\1\)..............  ...................  ...................  A.
Broken Base..................  1..................  6..................  ...................  ...................  D.
                               6 (\2\)............  ...................  ...................  ...................  A, or [E and I].
Ordinary Break...............  ...................  ...................  ...................  ...................  A or E.
Damaged Rail.................  ...................  ...................  ...................  ...................  C.
Flattened Rail Crushed Head..  Depth >= \3/8\ and   ...................  ...................  ...................  H.
                                Length >= 8.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Break out in rail head.
(2) Remedial action D applies to a moon-shaped breakout, resulting from a derailment, with length greater than 6 inches but not exceeding 12 inches and
  width not exceeding one-third of the rail base width.


[[Page 4257]]

    Notes:
    A. Assign a person designated under Sec.  213.7 to visually 
supervise each operation over the defective rail.
    A2. Assign a person designated under Sec.  213.7 to make a visual 
inspection. After a visual inspection, that person may authorize 
operation to continue without continuous visual supervision at a 
maximum of 10 m.p.h. for up to 24 hours prior to another such visual 
inspection or replacement or repair of the rail.
    B. Limit operating speed over the defective rail to that as 
authorized by a person designated under Sec.  213.7(a), who has at 
least one year of supervisory experience in railroad track maintenance. 
The operating speed cannot be over 30 m.p.h. or the maximum allowable 
speed under Sec.  213.9 for the class of track concerned, whichever is 
lower.
    C. Apply joint bars bolted only through the outermost holes to the 
defect within 10 days after it is determined to continue the track in 
use. In the case of Class 3 through 5 track, limit the operating speed 
over the defective rail to 30 m.p.h. until joint bars are applied; 
thereafter, limit the speed to 50 m.p.h. or the maximum allowable speed 
under Sec.  213.9 for the class of track concerned, whichever is lower. 
When a search for internal rail defects is conducted under Sec.  
213.237, and defects are discovered in Class 3 through 5 track that 
require remedial action C, the operating speed shall be limited to 50 
m.p.h. or the maximum allowable speed under Sec.  213.9 for the class 
of track concerned, whichever is lower, for a period not to exceed 4 
days. If the defective rail has not been removed from the track or a 
permanent repair made within 4 days of the discovery, limit operating 
speed over the defective rail to 30 m.p.h. until joint bars are 
applied; thereafter, limit speed to 50 m.p.h. or the maximum allowable 
speed under Sec.  213.9 for the class of track concerned, whichever is 
lower. When joint bars have not been applied within 10 days, the speed 
must be limited to 10 m.p.h. until joint bars are applied.
    D. Apply joint bars bolted only through the outermost holes to the 
defect within 7 days after it is determined to continue the track in 
use. In the case of Class 3 through 5 track, limit operating speed over 
the defective rail to 30 m.p.h. or less as authorized by a person 
designated under Sec.  213.7(a), who has at least one year of 
supervisory experience in railroad track maintenance, until joint bars 
are applied; thereafter, limit speed to 50 m.p.h. or the maximum 
allowable speed under Sec.  213.9 for the class of track concerned, 
whichever is lower. When joint bars have not been applied within 7 
days, the speed must be limited to 10 m.p.h. until the joint bars are 
applied.
    E. Apply joint bars to the defect and bolt in accordance with Sec.  
213.121(d) and (e).
    F. Inspect the rail within 90 days after it is determined to 
continue the track in use. If the rail remains in the track and is not 
replaced or repaired, the reinspection cycle starts over with each 
successive reinspection unless the reinspection reveals the rail defect 
to have increased in size and therefore become subject to a more 
restrictive remedial action. This process continues indefinitely until 
the rail is removed from the track or repaired. If not inspected within 
90 days, limit speed to that for Class 2 track or the maximum allowable 
speed under Sec.  213.9 for the class of track concerned, whichever is 
lower, until it is inspected.
    G. Inspect rail within 30 days after it is determined to continue 
the track in use. If the rail remains in the track and is not replaced 
or repaired, the reinspection cycle starts over with each successive 
reinspection unless the reinspection reveals the rail defect to have 
increased in size and therefore become subject to a more restrictive 
remedial action. This process continues indefinitely until the rail is 
removed from the track or repaired. If not inspected within 30 days, 
limit speed to that for Class 2 track or the maximum allowable speed 
under Sec.  213.9 for the class of track concerned, whichever is lower, 
until it is inspected.
    H. Limit operating speed over the defective rail to 50 m.p.h. or 
the maximum allowable speed under Sec.  213.9 for the class of track 
concerned, whichever is lower.
    I. Limit operating speed over the defective rail to 30 m.p.h. or 
the maximum allowable speed under Sec.  213.9 for the class of track 
concerned, whichever is lower.
    (d) As used in this section--
    (1) Bolt hole crack means a crack across the web, originating from 
a bolt hole, and progressing on a path either inclined upward toward 
the rail head or inclined downward toward the base. Fully developed 
bolt hole cracks may continue horizontally along the head/web or base/
web fillet, or they may progress into and through the head or base to 
separate a piece of the rail end from the rail. Multiple cracks 
occurring in one rail end are considered to be a single defect. 
However, bolt hole cracks occurring in adjacent rail ends within the 
same joint must be reported as separate defects.
    (2) Broken base means any break in the base of the rail.
    (3) Compound fissure means a progressive fracture originating from 
a horizontal split head that turns up or down, or in both directions, 
in the head of the rail. Transverse development normally progresses 
substantially at a right angle to the length of the rail.
    (4) Crushed head means a short length of rail, not at a joint, 
which has drooped or sagged across the width of the rail head to a 
depth of \3/8\ inch or more below the rest of the rail head and 8 
inches or more in length. Unlike flattened rail where the depression is 
visible on the rail head only, the sagging or drooping is also visible 
in the head/web fillet area.
    (5) Damaged rail means any rail broken or otherwise damaged by a 
derailment, broken, flat, or unbalanced wheel, wheel slipping, or 
similar causes.
    (6) Defective weld means a field or plant weld containing any 
discontinuities or pockets, exceeding 5 percent of the rail head area 
individually or 10 percent in the aggregate, oriented in or near the 
transverse plane, due to incomplete penetration of the weld metal 
between the rail ends, lack of fusion between weld and rail end metal, 
entrainment of slag or sand, under-bead or shrinkage cracking, or 
fatigue cracking. Weld defects may originate in the rail head, web, or 
base, and in some cases, cracks may progress from the defect into 
either or both adjoining rail ends. If the weld defect progresses 
longitudinally through the weld section, the defect is considered a 
split web for purposes of remedial action required by this section.
    (7) Detail fracture means a progressive fracture originating at or 
near the surface of the rail head. These fractures should not be 
confused with transverse fissures, compound fissures, or other defects 
which have internal origins. Detail fractures may arise from shelled 
spots, head checks, or flaking.
    (8) Engine burn fracture means a progressive fracture originating 
in spots where driving wheels have slipped on top of the rail head. In 
developing downward these fractures frequently resemble the compound or 
even transverse fissures with which they should not be confused or 
classified.
    (9) Flattened rail means a short length of rail, not at a joint, 
which has flattened out across the width of the rail head to a depth of 
\3/8\ inch or more below the rest of the rail and 8 inches or more in 
length. Flattened rail occurrences have no repetitive regularity and 
thus do not include corrugations, and have no apparent localized cause 
such as a weld

[[Page 4258]]

or engine burn. Their individual length is relatively short, as 
compared to a condition such as head flow on the low rail of curves.
    (10) Head and web separation means a progressive fracture, 
longitudinally separating the head from the web of the rail at the head 
fillet area.
    (11) Horizontal split head means a horizontal progressive defect 
originating inside of the rail head, usually \1/4\ inch or more below 
the running surface and progressing horizontally in all directions, and 
generally accompanied by a flat spot on the running surface. The defect 
appears as a crack lengthwise of the rail when it reaches the side of 
the rail head.
    (12) Ordinary break means a partial or complete break in which 
there is no sign of a fissure, and in which none of the other defects 
described in this paragraph (d) is found.
    (13) Piped rail means a vertical split in a rail, usually in the 
web, due to failure of the shrinkage cavity in the ingot to unite in 
rolling.
    (14) Split web means a lengthwise crack along the side of the web 
and extending into or through it.
    (15) Transverse fissure means a progressive crosswise fracture 
starting from a crystalline center or nucleus inside the head from 
which it spreads outward as a smooth, bright, or dark round or oval 
surface substantially at a right angle to the length of the rail. The 
distinguishing features of a transverse fissure from other types of 
fractures or defects are the crystalline center or nucleus and the 
nearly smooth surface of the development which surrounds it.
    (16) Vertical split head means a vertical split through or near the 
middle of the head, and extending into or through it. A crack or rust 
streak may show under the head close to the web or pieces may be split 
off the side of the head.


Sec.  213.119  [Amended]


0
4. Remove and reserve Sec.  213.119(h)(7)(ii).

Subpart F--Inspection


0
5. Revise Sec.  213.237 to read as follows:


Sec.  213.237  Inspection of rail.

    (a) In addition to the inspections required by Sec.  213.233, each 
track owner shall conduct internal rail inspections sufficient to 
maintain service failure rates per rail inspection segment in 
accordance with this paragraph (a) for a 12-month period, as determined 
by the track owner and calculated within 45 days of the end of the 
period. These rates shall not include service failures that occur in 
rail that has been replaced through rail relay since the time of the 
service failure. Rail used to repair a service failure defect is not 
considered relayed rail. The service failure rates shall not exceed--
    (1) 0.1 service failure per year per mile of track for all Class 4 
and 5 track;
    (2) 0.09 service failure per year per mile of track for all Class 
3, 4, and 5 track that carries regularly-scheduled passenger trains or 
is a hazardous materials route; and
    (3) 0.08 service failure per year per mile of track for all Class 
3, 4, and 5 track that carries regularly-scheduled passenger trains and 
is a hazardous materials route.
    (b) Each rail inspection segment shall be designated by the track 
owner no later than March 25, 2014 for track that is Class 4 or 5 
track, or Class 3 track that carries regularly-scheduled passenger 
trains or is a hazardous materials route and is used to determine the 
milepost limits for the individual rail inspection frequency.
    (1) To change the designation of a rail inspection segment or to 
establish a new segment pursuant to this section, a track owner must 
submit a detailed request to the FRA Associate Administrator for 
Railroad Safety/Chief Safety Officer (Associate Administrator). Within 
30 days of receipt of the submission, FRA will review the request. FRA 
will approve, disapprove, or conditionally approve the submitted 
request, and will provide written notice of its determination.
    (2) The track owner's existing designation shall remain in effect 
until the track owner's new designation is approved or conditionally 
approved by FRA.
    (3) The track owner shall, upon receipt of FRA's approval or 
conditional approval, establish the designation's effective date. The 
track owner shall advise in writing FRA and all affected railroad 
employees of the effective date.
    (c) Internal rail inspections on Class 4 and 5 track, or Class 3 
track with regularly-scheduled passenger trains or that is a hazardous 
materials route, shall not exceed a time interval of 370 days between 
inspections or a tonnage interval of 30 million gross tons (mgt) 
between inspections, whichever is shorter. Internal rail inspections on 
Class 3 track that is without regularly-scheduled passenger trains and 
not a hazardous materials route must be inspected at least once each 
calendar year, with no more than 18 months between inspections, or at 
least once every 30 mgt, whichever interval is longer, but in no case 
may inspections be more than 5 years apart.
    (1) Any rail used as a replacement plug rail in track that is 
required to be tested in accordance with this section must have been 
tested for internal rail flaws.
    (2) The track owner must verify that any plug rail installed after 
March 25, 2014 has not accumulated more than a total of 30 mgt in 
previous and new locations since its last internal rail flaw test, 
before the next test on the rail required by this section is performed.
    (3) If plug rail not in compliance with this paragraph (c) is in 
use after March 25, 2014, trains over that rail must not exceed Class 2 
speeds until the rail is tested in accordance with this section.
    (d) If the service failure rate target identified in paragraph (a) 
of this section is not achieved, the track owner must inform FRA of 
this fact within 45 days of the end of the defined 12-month period in 
which the performance target is exceeded. In addition, the track owner 
may provide to FRA an explanation as to why the performance target was 
not achieved and provide a remedial action plan.
    (1) If the performance target rate is not met for two consecutive 
years, then for the area where the greatest number of service failures 
is occurring, either:
    (i) The inspection tonnage interval between tests must be reduced 
to 10 mgt; or
    (ii) The class of track must be reduced to Class 2 until the target 
service failure rate is achieved.
    (2) In cases where a single service failure would cause the rate to 
exceed the applicable service failure rate as designated in paragraph 
(a) of this section, the service failure rate will be considered to 
comply with paragraph (a) of this section unless a second such failure 
occurs within a designated 12-month period. For the purposes of this 
paragraph (d)(2), a period begins no earlier than January 24, 2014.
    (e) Each defective rail shall be marked with a highly visible 
marking on both sides of the web and base except that, where a side or 
sides of the web and base are inaccessible because of permanent 
features, the highly visible marking may be placed on or next to the 
head of the rail.
    (f) Inspection equipment shall be capable of detecting defects 
between joint bars, in the area enclosed by joint bars.
    (g) If the person assigned to operate the rail defect detection 
equipment (i.e., the qualified operator) determines that a valid search 
for internal defects could not be made over a particular length of 
track, that particular length of track may not be considered as 
internally

[[Page 4259]]

inspected under paragraphs (a) and (c) of this section.
    (h) If a valid search for internal defects could not be conducted, 
the track owner shall, before expiration of the time or tonnage limits 
in paragraph (a) or (c) of this section--
    (1) Conduct a valid search for internal defects;
    (2) Reduce operating speed to a maximum of 25 m.p.h. until such 
time as a valid search can be made; or
    (3) Replace the rail that had not been inspected.
    (i) The person assigned to operate the rail defect detection 
equipment must be a qualified operator as defined in Sec.  213.238 and 
have demonstrated proficiency in the rail flaw detection process for 
each type of equipment the operator is assigned.
    (j) As used in this section--
    (1) Hazardous materials route means track over which a minimum of 
10,000 car loads or intermodal portable tank car loads of hazardous 
materials as defined in 49 CFR 171.8 travel over a period of one 
calendar year; or track over which a minimum of 4,000 car loads or 
intermodal portable tank car loads of the hazardous materials specified 
in 49 CFR 172.820 travel, in a period of one calendar year.
    (2) Plug rail means a length of rail that has been removed from one 
track location and stored for future use as a replacement rail at 
another location.
    (3) Service failure means a broken rail occurrence, the cause of 
which is determined to be a compound fissure, transverse fissure, 
detail fracture, or vertical split head.
    (4) Valid search means a continuous inspection for internal rail 
defects where the equipment performs as intended and equipment 
responses are interpreted by a qualified operator as defined in Sec.  
213.238.


0
6. Add Sec.  213.238 to read as follows:


Sec.  213.238  Qualified operator.

    (a) Each provider of rail flaw detection shall have a documented 
training program in place and shall identify the types of rail flaw 
detection equipment for which each equipment operator it employs has 
received training and is qualified. A provider of rail flaw detection 
may be the track owner. A track owner shall not utilize a provider of 
rail flaw detection that fails to comply with the requirements of this 
paragraph.
    (b) A qualified operator shall be trained and have written 
authorization from his or her employer to:
    (1) Conduct a valid search for internal rail defects utilizing the 
specific type(s) of equipment for which he or she is authorized and 
qualified to operate;
    (2) Determine that such equipment is performing as intended;
    (3) Interpret equipment responses and institute appropriate action 
in accordance with the employer's procedures and instructions; and
    (4) Determine that each valid search for an internal rail defect is 
continuous throughout the area inspected and has not been compromised 
due to environmental contamination, rail conditions, or equipment 
malfunction.
    (c) To be qualified, the operator must have received training in 
accordance with the documented training program and a minimum of 160 
hours of rail flaw detection experience under direct supervision of a 
qualified operator or rail flaw detection equipment manufacturer's 
representative, or some combination of both. The operator must 
demonstrate proficiency in the rail defect detection process, including 
the equipment to be utilized, prior to initial qualification and 
authorization by the employer for each type of equipment.
    (d) Each employer shall reevaluate the qualifications of, and 
administer any necessary recurrent training for, the operator as 
determined by and in accordance with the employer's documented program. 
The reevaluation process shall require that the employee successfully 
complete a recorded examination and demonstrate proficiency to the 
employer on the specific equipment type(s) to be operated. Proficiency 
may be determined by a periodic review of test data submitted by the 
operator.
    (e) Each employer of a qualified operator shall maintain written or 
electronic records of each qualification in effect. Each record shall 
include the name of the employee, the equipment to which the 
qualification applies, date of qualification, and date of the most 
recent reevaluation, if any.
    (f) Any employee who has demonstrated proficiency in the operation 
of rail flaw detection equipment prior to January 24, 2014, is deemed a 
qualified operator, regardless of the previous training program under 
which the employee was qualified. Such an operator shall be subject to 
paragraph (d) of this section.
    (g) Records concerning the qualification of operators, including 
copies of equipment[hyphen]specific training programs and materials, 
recorded examinations, demonstrated proficiency records, and 
authorization records, shall be kept at a location designated by the 
employer and available for inspection and copying by FRA during regular 
business hours.


0
7. Amend Sec.  213.241 by:
0
a. Redesignating paragraphs (d) and (e) as (f) and (g),
0
b. Revising paragraph (c),
0
c. Adding new paragraphs (d) and (e), and
0
d. Revising newly redesignated paragraphs (f) and (g) to read as 
follows:


Sec.  213.241  Inspection records.

* * * * *
    (c) Records of internal rail inspections required by Sec.  213.237 
shall specify the--
    (1) Date of inspection;
    (2) Track inspected, including beginning and end points;
    (3) Location and type of defects found under Sec.  213.113;
    (4) Size of defects found under Sec.  213.113, if not removed prior 
to the next train movement;
    (5) Initial remedial action taken and the date thereof; and
    (6) Location of any track not tested pursuant to Sec.  213.237(g).
    (d) The track owner shall retain a rail inspection record under 
paragraph (c) of this section for at least two years after the 
inspection and for one year after initial remedial action is taken.
    (e) The track owner shall maintain records sufficient to 
demonstrate the means by which it computes the service failure rate on 
all track segments subject to the requirements of Sec.  213.237(a) for 
the purpose of determining compliance with the applicable service 
failure rate target.
    (f) Each track owner required to keep inspection records under this 
section shall make those records available for inspection and copying 
by FRA upon request.
    (g) For purposes of complying with the requirements of this 
section, a track owner may maintain and transfer records through 
electronic transmission, storage, and retrieval provided that--
    (1) The electronic system is designed so that the integrity of each 
record is maintained through appropriate levels of security such as 
recognition of an electronic signature, or another means, which 
uniquely identifies the initiating person as the author of that record. 
No two persons shall have the same electronic identity;
    (2) The electronic storage of each record shall be initiated by the 
person making the inspection within 24 hours following the completion 
of that inspection;
    (3) The electronic system shall ensure that each record cannot be 
modified in any way, or replaced, once the record is transmitted and 
stored;
    (4) Any amendment to a record shall be electronically stored apart 
from the record which it amends. Each

[[Page 4260]]

amendment to a record shall be uniquely identified as to the person 
making the amendment;
    (5) The electronic system shall provide for the maintenance of 
inspection records as originally submitted without corruption or loss 
of data;
    (6) Paper copies of electronic records and amendments to those 
records that may be necessary to document compliance with this part 
shall be made available for inspection and copying by FRA at the 
locations specified in paragraph (b) of this section; and
    (7) Track inspection records shall be kept available to persons who 
performed the inspections and to persons performing subsequent 
inspections.


0
8. Amend appendix B to part 213 by adding the entry for Sec.  213.238 
in numerical order under subpart F to read as follows:

Appendix B to Part 213--Schedule of Civil Penalties

----------------------------------------------------------------------------------------------------------------
                           Section                                    Violation           Willful violation \1\
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
SUBPART F--Inspection:
 
                                                  * * * * * * *
213.238 Qualified operator..................................                   $2,500                    $5,000
 
                                                 * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the
  right to assess a penalty of up to $105,000 for any violation where circumstances warrant. See 49 CFR part
  209, appendix A.


    Issued in Washington, DC, on January 16, 2014.
Joseph C. Szabo,
Administrator.
[FR Doc. 2014-01387 Filed 1-23-14; 8:45 am]
BILLING CODE 4910-06-P