[Federal Register Volume 84, Number 250 (Tuesday, December 31, 2019)]
[Proposed Rules]
[Pages 72526-72552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27748]



[[Page 72525]]

Vol. 84

Tuesday,

No. 250

December 31, 2019

Part III





Department of Transportation





-----------------------------------------------------------------------





Federal Railroad Administration





-----------------------------------------------------------------------





49 CFR Part 213





Rail Integrity Amendments & Track Safety Standards; Proposed Rule

  Federal Register / Vol. 84 , No. 250 / Tuesday, December 31, 2019 / 
Proposed Rules  

[[Page 72526]]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

[Docket No. FRA-2018-0104]
RIN 2130-AC53


Rail Integrity Amendments & Track Safety Standards

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

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: FRA is proposing to revise its regulations governing the 
minimum safety requirements for railroad track. The proposed changes 
include allowing inspection of rail using continuous rail testing; 
allowing the use of flange-bearing frogs in crossing diamonds; relaxing 
the guard check gage limits on heavy-point frogs used in Class 5 track; 
removing an inspection-method exception for high-density commuter 
lines; and other miscellaneous revisions. Overall, the proposed 
revisions would benefit track owners, railroads, and the public by 
reducing unnecessary costs and incentivizing innovation, while not 
negatively affecting rail safety.

DATES: Written comments must be received by March 2, 2020. Comments 
received after that date will be considered to the extent possible 
without incurring additional expense or delay.

ADDRESSES: Comments: Comments related to Docket No. FRA-2018-0104 may 
be submitted by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting 
comments;
     Mail: Docket Management Facility, U.S. DOT, 1200 New 
Jersey Avenue SE, W12-140, Washington, DC 20590;
     Hand Delivery: The Docket Management Facility is located 
in Room W12-140, West Building Ground Floor, U.S. DOT, 1200 New Jersey 
Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays; or
     Fax: 202-493-2251.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking (2130-AC53). All comments received will be posted without 
change to http://www.regulations.gov; this includes any personal 
information. Please see the Privacy Act heading in the SUPPLEMENTARY 
INFORMATION section of this document for Privacy Act information 
related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov and follow the 
online instructions for accessing the docket or visit the Docket 
Management Facility described above.

FOR FURTHER INFORMATION CONTACT: Matthew Brewer, Staff Director, Rail 
Integrity Division, Office of Railroad Safety, Federal Railroad 
Administration, 500 East Broadway, Suite 240, Vancouver, WA 98660, 
telephone: 202-385-2209; Yu-Jiang Zhang, Staff Director, Track 
Division, Office of Railroad Safety, Federal Railroad Administration, 
1200 New Jersey Avenue SE, W33-302, Washington, DC 20590, telephone: 
202-493-6460; or Aaron Moore, Attorney, Office of Chief Counsel, 
Federal Railroad Administration, 1200 New Jersey Avenue SE, W31-216, 
Washington, DC 20590, telephone: 202-493-7009.

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Executive Summary
II. Rulemaking Authority and Background
III. Development of the NPRM
IV. Summary of Major Provisions of the NPRM
    A. Proposal To Allow Continuous Rail Testing
    B. Proposal To Remove High-Density Commuter Line Exception
    C. Incorporation of Flange-Bearing Frog and Heavy-Point Frog 
Waivers
    i. Heavy-Point Frogs
    ii. Flange-Bearing Frog Crossing Diamonds
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
    A. Executive Order 12866, and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Environmental Impact
    E. Federalism Implications
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Privacy Act Statement

I. Executive Summary

    Beginning in 2015, the Track Safety Standards Working Group (TSS 
Working Group) of the Railroad Safety Advisory Committee (RSAC) met 
numerous times to ``consider specific improvements to the Track Safety 
Standards . . . designed to enhance rail safety by improving track 
inspection methods, frequency, and documentation.'' As detailed below, 
FRA's proposals in this NPRM are, in part, a direct result of the 
RSAC's recommendations and of FRA's own review and analysis of the 
Track Safety Standards (TSS or Standards) (49 CFR part 213). To 
streamline and ensure its regulations are as up to date as practicable, 
FRA periodically reviews and proposes amendments to its regulations. 
Various Executive Orders (for example, President Trump's Executive 
Order 13771, discussed in more detail below in section II) also 
encourage or require such review with an emphasis on cost savings. This 
NPRM is responsive to those Executive Orders.
    In this NPRM, FRA proposes to amend subparts A, D, F, and G of the 
TSS to (1) allow for continuous rail testing, (2) incorporate 
longstanding waivers related to track frogs, (3) remove the exception 
for high-density commuter lines from certain track inspection method 
requirements, and (4) incorporate several consensus-based, RSAC 
recommendations.
    FRA proposes to amend part 213 to allow for what is commonly 
referred to as ``continuous rail testing.'' Although the Rail Integrity 
Working Group did not reach consensus on specific, recommended 
regulatory text, FRA's proposal to allow continuous rail testing is 
based, in part, on information garnered from the Working Group's 
discussions of the issue. Generally, continuous rail testing differs 
from the traditional stop-and-verify rail inspection process, which 
involves an operator riding in a test vehicle traveling over the rail 
and reviewing test data in real-time as the vehicle collects it, 
including stopping the vehicle to verify indications of possible rail 
defects. Continuous rail testing, on the other hand, is a rail 
inspection process that tests the rail non-stop along a designated 
route, collecting the rail inspection data and transmitting it to an 
analyst at a centralized location for review and categorization of 
suspected rail flaws that are subsequently field-verified. To enable 
this process, FRA proposes that those entities electing to use 
continuous rail testing be exempt from the current requirement that 
certain indications of suspected rail defects be immediately verified 
and all other indications be field-verified within four hours. Instead, 
FRA proposes to extend the verification period to allow the data to be 
analyzed off-site but still require field verification within a 
specified period (i.e., between 24 and 84 hours, depending on the type 
of defect). Since 2011, multiple railroads have conducted pilot 
projects to test and evaluate the effectiveness of the continuous rail 
testing process. FRA believes that allowing continuous

[[Page 72527]]

testing will enhance the effectiveness of the rail testing process 
while decreasing the economic cost to the industry.
    FRA also proposes to incorporate two existing waivers into part 
213, to provide additional flexibility in the use of track frogs. A 
frog is a track component used at the intersection of two running rails 
to provide support for wheels and passage for their flanges, thus 
permitting wheels on either rail to cross the other intersecting rail. 
As explained in more detail below, FRA has approved a waiver to allow 
railroads to use heavy-point frogs in Class 5 track that do not comply 
with the current minimum guard check gage limit. A heavy-point frog is 
a unique design that has a thicker frog point. Under the current 
waiver, those heavy-point frogs in Class 5 track are instead permitted 
to meet the minimum guard check gage limit for Class 4 track. 
Additionally, FRA has issued a waiver allowing the railroad industry to 
utilize flange-bearing-frog crossing diamonds that do not comply with 
the flangeway depth requirements in 49 CFR 213.137(a). Flange-bearing-
frog crossing diamonds are different from traditional tread-bearing 
frogs in that they are designed to support wheels running on their 
flanges. Both waivers have been in place for an extended period of time 
and both heavy-point frogs and flange-bearing-frog crossing diamonds 
have been safe under them.
    In response to National Transportation Safety Board (NTSB) Safety 
Recommendation R-14-11 and sec. 11409 of the Fixing America's Surface 
Transportation Act, Public Law 114-94, 129 Stat. 1686 (Dec. 4, 2015) 
(FAST Act), FRA also proposes to remove the exception in 49 CFR 
213.233(b)(3) concerning the manner of inspecting high-density commuter 
lines. Section 213.233(b)(3) normally requires each main track be 
traversed by vehicle or inspected on foot at least once every two 
weeks, and each siding be traversed by vehicle or inspected on foot at 
least once every month. Section 213.233(b)(3) exempts high-density 
commuter lines where track time does not permit on-track vehicle 
inspection and where track centers are 15 feet or less apart, but FRA 
is not aware of any railroads utilizing this exception and, as 
discussed below, agrees that in the interest of safety the exception 
should be removed.
    FRA also proposes other miscellaneous revisions to part 213 (e.g., 
revising qualification requirements for certain railroad employees, 
adjusting recordkeeping requirements, etc.), many of which are based on 
consensus recommendations of the TSS Working Group. FRA proposes to 
adopt these consensus recommendations with generally minor changes for 
purposes of clarity, formatting, and consistency. Those proposed 
revisions are discussed in more detail below.
    FRA analyzed the economic impact of this proposed rule over a 10-
year period and estimated its costs and cost savings. If railroad track 
owners choose to take advantage of the cost savings from this proposed 
rule, they would incur additional labor costs associated with 
continuous rail testing. These costs are voluntary because railroad 
track owners would only incur them if they choose to operate continuous 
rail testing vehicles. The following table shows the net cost savings 
of this proposed rule, over the 10-year analysis.

                                          Net Cost Savings, in Millions
                                                 [2018 dollars]
----------------------------------------------------------------------------------------------------------------
                                                   Present value   Present value
                                                        7%              3%         Annualized 7%   Annualized 3%
----------------------------------------------------------------------------------------------------------------
Costs...........................................           $25.9           $31.4            $3.7            $3.7
Cost Savings....................................           148.7           180.3            21.2            21.1
                                                 ---------------------------------------------------------------
    Net Cost Savings............................           122.8           148.9            17.5            17.4
----------------------------------------------------------------------------------------------------------------

    This proposed rule would result in cost savings for railroad track 
owners. The cost savings are in the table below.

                                            Cost Savings, in Millions
                                       [Over a 10-year period of analysis]
----------------------------------------------------------------------------------------------------------------
                                                   Present value   Present value
                     Section                            7%              3%         Annualized 7%   Annualized 3%
----------------------------------------------------------------------------------------------------------------
Flange Bearing Frog Inspections.................          $0.191          $0.223          $0.027          $0.026
Frog Waiver Savings.............................           0.013           0.016           0.002           0.002
Continuous Testing Labor Cost Savings...........           7.086           8.590           1.009           1.007
Slow Orders.....................................         141.329         171.340          20.122          20.086
Continuous Testing Waiver Savings...............           0.130           0.154           0.012           0.010
                                                 ---------------------------------------------------------------
    Total.......................................         148.749         180.324          21.172          21.132
----------------------------------------------------------------------------------------------------------------

    The table below presents the estimated costs, over the 10-year 
analysis.

[[Page 72528]]



                                          Estimated Costs, in Millions
                                       [Over a 10-year period of analysis]
----------------------------------------------------------------------------------------------------------------
                                               Present value    Present value
                                                     7%               3%         Annualized 7%    Annualized 3%
----------------------------------------------------------------------------------------------------------------
Continuous Testing..........................           $25.9            $31.4             $3.7             $3.7
----------------------------------------------------------------------------------------------------------------

II. Rulemaking Authority and Background

    On January 30, 2017, President Trump issued Executive Order (E.O.) 
13771. E.O. 13771 seeks to ``manage the costs associated with the 
governmental imposition of private expenditures required to comply with 
Federal regulations'' and directs each executive department or agency 
to identify for elimination two existing regulations for every new 
regulation issued. E.O. 13771 also requires any new incremental cost 
associated with a new regulation, to the extent permitted by law, be at 
least offset by the elimination of existing costs associated with at 
least two prior regulations. Similarly, E.O. 13610 (Identifying and 
Reducing Regulatory Burdens, issued May 12, 2012), seeks ``to modernize 
our regulatory system and to reduce unjustified regulatory burdens and 
costs'' and directs each executive agency to conduct retrospective 
reviews of its regulatory requirements to identify potentially 
beneficial modifications to regulations. 77 FR 28469. Executive 
agencies are to ``give priority, consistent with the law, to those 
initiatives that will produce significant quantifiable monetary savings 
or significant quantifiable reductions in paperwork burdens while 
protecting public health, welfare, safety and our environment.'' See 
id. at 28470.
    In response to E.O. 13771, FRA initiated a review of its existing 
regulations with the goal of identifying regulations that it could 
amend or eliminate to reduce the overall regulatory, paperwork, and 
cost burden on entities subject to FRA jurisdiction. FRA identified 
part 213 as a regulation FRA could amend and thereby reduce the 
railroad industry's overall regulatory and cost burden without 
negatively affecting safety. Also, in response to a DOT request for 
public comment on existing rules ripe for repeal or modification, the 
Association of American Railroads and other industry participants 
encouraged FRA to revise part 213 to allow for the use of innovations 
in rail inspection technology, specifically the use of non-stop rail 
inspection vehicles. See docket number DOT-OST-2017-0069 (available 
online at www.regulations.gov). This rule responds to those comments by 
proposing to provide railroads with the flexibility to use continuous 
rail testing in a way that will facilitate operational efficiency and 
enhance safety.
    Section 20103 of title 49 of the United States Code (U.S.C.) 
provides that, ``[t]he Secretary of Transportation, shall prescribe 
regulations and issue orders for every area of railroad safety.'' This 
statutory section codifies the authority granted to the Secretary of 
Transportation under the Federal Railroad Safety Act of 1970. The 
Secretary's authority to act under sec. 20103 is delegated to the 
Federal Railroad Administrator. See 49 CFR 1.89.
    FRA published the first Standards on October 20, 1971. 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), which led to FRA issuing a final rule amending the Standards in 
1998. See 63 FR 34029, June 22, 1998; 63 FR 54078, Oct. 8, 1998.

III. Development of the NPRM

    As noted above, the proposals in this NPRM are based, in part, on 
the consensus recommendations of the TSS Working Group and, in part, on 
FRA's own review and analysis. The RSAC provides a forum for developing 
consensus recommendations and providing information to the 
Administrator of FRA on rulemakings and other safety program issues, 
and includes representatives from all the agency's major stakeholders. 
The RSAC established the TSS Working Group on February 22, 2006, and it 
met numerous times since formation and addressed multiple tasks and 
issues. Beginning in 2015, one of those tasks involved some of the 
revisions proposed in this NPRM. At the July 19-20, 2016 meeting, FRA 
presented draft proposed revisions to part 213. Over the course of two 
years and four additional meeting, the TSS Working Group discussed the 
draft revisions in depth, considered draft revisions presented by other 
members, and ultimately tailored the revisions to reflect the 
suggestions and concerns of the TSS Working Group members. During the 
March 13-14, 2018 meeting, the TSS Working Group unanimously 
recommended proposed revisions, which form the basis for parts of this 
NPRM. As proposed in this NPRM and discussed in more detail below, 
these revisions include removal of the high-density commuter line 
inspection-method exception, changes to qualification requirements for 
certain railroad employees, and revisions to recordkeeping 
requirements.

IV. Summary of Major Provisions of the NPRM

A. Proposal To Allow Continuous Rail Testing

    FRA sponsors railroad safety research, including research 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 maintenance practices that increase rail service life. 
Generally, FRA's rail integrity research focuses on four distinct 
areas: Analysis of rail defects; residual stresses in rail; strategies 
for rail testing; and other related issues (e.g., advances in 
nondestructive inspection techniques; feasibility of advanced materials 
for rail, rail lubrication, rail grinding and wear; etc.). FRA's rail 
integrity research is an ongoing effort, and is particularly important 
as annual tonnages and average axle loads continue to increase on the 
nation's railroads. For more discussion of rail integrity generally, 
see FRA's 2014 final rule titled Track Safety Standards; Improving Rail 
Integrity. 79 FR 4234, Jan. 24, 2014.
    One of the most important assets to the railroad industry is its 
rail infrastructure. Historically, a primary concern of railroads has 
been the probability of rail flaw development. Rail defects may take 
many forms (e.g., rail head surface conditions and internal rail 
flaws). If defects go undetected, they may grow to critical size, 
potentially resulting in a broken rail and subsequent derailment. 
Accordingly, to prevent rail defect development, railroads seek ways to 
improve their rail maintenance practices, install more

[[Page 72529]]

wear-resistant rail, utilize improved flaw-detection technologies, and 
increase rail inspection frequencies.
    The development of internal rail defects is an inevitable 
consequence of the accumulation and effects of fatigue under repeated 
loading. The direct cost of an undetected rail defect is the difference 
between the cost of replacing the rail when a failure occurs, plus the 
cost of any damage caused by the failure, which can be considerably 
more than the cost of the planned replacement of detected defects 
before they fail. Rail failures can have widespread and catastrophic 
consequences, such as environmental damage and potential injury and 
loss of life along with excessive service interruptions, and extensive 
traffic rerouting. The challenge for the railroad industry is to avoid 
the occurrence of rail service failure due to the presence of an 
undetected defect.
    The effectiveness of a rail inspection program depends, in part, 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 allow for detection of defects 
before they grow to critical size. Normal railroad operations can add 
additional complexity to the rail inspection program. High traffic and 
tonnage volumes can accelerate defect growth, while at the same time 
decreasing the time available for rail inspection. Additionally, these 
high volumes can lead to rail surface fatigue that may negatively 
affect the ability of test equipment to see into the rail and thus 
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.
    Current rail flaw 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;
     Stop-and-verify process, where a vehicle-based flaw 
detection system tests at a slow speed (normally not exceeding 20 
m.p.h.) gathering data that is presented to the operator on a test 
monitor for interpretation and field verification;
     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 is one of the subjects 
addressed in this NPRM and 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 the processes listed above are 
the ultrasonic and induction methods. Ultrasonic technology is the 
primary technology used, with induction technology 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. Other conditions that can limit the effectiveness of 
inspection include heavy lubrication or debris on the rail head.
    Induction testing introduces 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 the magnetic field, which will be detected by the search unit.
    Ultrasonic testing uses sound waves that propagate at a frequency 
that is normally between 2.25 MHz (million cycles per second) to 5.0 
MHz, above the range of human hearing. Ultrasonic waves are generated 
into the rail by transducers 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 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, or 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.
    FRA is proposing to amend its regulations on inspection of rail and 
verification of indications of defective rail to allow for continuous 
rail testing. See proposed Sec.  213.240. The current regulations 
require immediate verification of certain indications and require all 
others be verified within 4 hours. 49 CFR 213.113(b). This verification 
timeframe has made it practically impossible for track owners to 
conduct continuous testing. Consistent with FRA's desire to improve 
rail safety and encourage innovation that does the same, this proposed 
rulemaking would establish procedures that, except for indications of a 
broken rail, extend the required verification timeframes for those 
entities that adopt continuous testing. FRA believes this would 
facilitate operational efficiency and encourage both a broader scope 
and more frequent use of rail testing in the industry.
    Although rail flaw detection is not an exact science, noncritical 
rail flaw limits can be difficult to estimate, and numerous variables 
affect rail flaw growth, FRA believes the procedures proposed in this 
NPRM are sufficient to ensure the extended verification timeframes 
would not result in complete rail failure prior to verification. 
Continuous rail testing is a process that has been successfully trialed 
under the waiver process outlined in 49 CFR 213.17 on select rail 
segments on multiple railroads in the U.S. since 2009.\1\ In general, 
FRA is authorized to waive compliance with its regulations if the 
waiver ``is in the public interest and consistent with railroad 
safety.'' 49 U.S.C. 20103(d). Under 49 CFR 213.17 and FRA's Rules of 
Practice found at 49 CFR part 211, any person subject to FRA's safety 
regulations can submit a petition for a waiver from those requirements. 
FRA's Rules of Practice provide a process and outline the requirements 
for waiver petitions. Each properly filed petition for a waiver is 
referred to the FRA Railroad Safety Board (Board) for decision. See 49 
CFR 211.41(a). The Board's decision is typically rendered after a 
notice is published in the Federal Register and an opportunity for 
public comment is provided. See 49 CFR 211.41. If the Board grants the 
waiver request, the Board may impose conditions on the grant of relief 
to ensure the decision is in the public interest and consistent with 
railroad safety. This rulemaking would codify the continuous rail 
testing practices FRA has permitted by waiver and allow for additional 
flexibility in the rail inspection process. Track owners that do not 
desire to conduct continuous rail

[[Page 72530]]

testing would not be affected by the proposal.
---------------------------------------------------------------------------

    \1\ See docket numbers FRA-2008-0111 (CSX), FRA-2011-0107 (CSX). 
FRA-2014-0029 (CN), FRA-2015-0019 (NS), FRA-2015-0115 (KCS), FRA-
2015-0130 (BNSF), FRA-2018-0022 (UP), FRA-2018-0031 (LIRR), FRA-
2019-0057 (MNCW) (available online at www.regulations.gov).
---------------------------------------------------------------------------

    Further, FRA's proposal would provide additional flexibility in the 
rail flaw detection processes to promote innovative approaches to 
improving safety in railroad operations. Proposed Sec.  213.240 would 
provide track owners the option to conduct continuous rail testing to 
satisfy the rail inspection requirements in Sec.  213.237 or, where 
applicable, Sec.  213.339. This proposed section would allow additional 
time for verification of indications of potential rail flaws identified 
through continuous testing. This additional time would allow for 
improvements in planning and execution of rail inspections and rail 
defect remediation, enabling track owners to conduct rail inspections 
with less impact on railroad operations. By reducing the impact on the 
rail network, more track time may become available to conduct 
maintenance and increase inspections. However, as continuous testing is 
a more complicated process compared to the traditional stop-and-verify 
rail inspection process, additional criteria have been proposed to 
ensure that this elective process is conducted in a manner that is in 
the interests of safety and has sufficient recordkeeping and 
transparency to allow for adequate FRA oversight.
    The proposed continuous rail test section would not modify the 
requirements to inspect rail as set forth in Sec. Sec.  213.237 and 
213.339, nor would it make any change to the remedial actions required 
after field verification of a rail defect as described in Sec.  
213.113(c).

B. Proposal To Remove High-Density Commuter Line Exception

    FRA is proposing to remove what is commonly referred to as the 
``high-density commuter line exception'' from the track inspection 
requirements in Sec.  213.233. This exception applies to ``high density 
commuter railroad lines where track time does not permit on-track 
vehicle inspection and where track centers are 15 feet or less apart'' 
and exempts those operations from 49 CFR 213.233(b)(3). Section 
213.233(b)(3) requires each main track to be traversed by vehicle or 
inspected on foot at least once every two weeks and each siding at 
least once each month. Although other provisions of Sec.  213.233 do 
require that such track be inspected, Sec.  213.233(b)(3) focuses on 
the direct manner of conducting those inspections over or on the 
subject track.
    On May 17, 2013, Metro-North Commuter Railroad (Metro-North) 
passenger train 1548 was traveling eastbound from Grand Central 
Station, New York, toward New Haven, Connecticut, when it derailed in 
Bridgeport, Connecticut, and was struck by westbound Metro-North 
passenger train 1581. The accident resulted in approximately 65 
injuries and damages estimated at over $18 million. During the 
investigation, a pair of broken compromise joint bars were found at the 
point of derailment. One of those broken joint bars was located on the 
gage side of the track over which train 1548 was traveling (main track 
4). NTSB's investigation also found that Metro-North last inspected the 
track in the area two days before the accident, but the inspection was 
conducted by an inspector in a hi-rail vehicle traveling on main track 
2, which was next to main track 4, and the joint bars in question would 
not have been visible during that inspection. See NTSB's Railroad 
Accident Brief, October 24, 2014, available at https://www.ntsb.gov/investigations/AccidentReports/Reports/RAB1409.pdf. In response to the 
Bridgeport accident, NTSB issued Safety Recommendation R-14-11 to FRA, 
which recommended that FRA revise the Standards, specifically Sec.  
213.233(b)(3), to remove the high-density commuter line exception.
    Subsequently, in 2015, Congress passed the FAST Act, and mandated 
in section 11409 that the Secretary of Transportation evaluate the 
Standards to determine if the high-density commuter line exception 
should be retained. After considering safety, system capacity, and 
other relevant factors such as the views of the railroad industry and 
relevant labor organizations, FRA has concluded, and the TSS Working 
Group unanimously agreed, that the high-density commuter line exception 
should be removed. All railroad operations, whether commuter or 
freight, or both, should be subject to the same inspection method 
requirements in Sec.  213.233(b)(3). No track owners or railroads 
currently utilize this exception.

C. Incorporation of Flange-Bearing Frog and Heavy-Point Frog Waivers

    As explained in more detail above, under 49 CFR 213.17 and FRA's 
Rules of Practice found at 49 CFR part 211, any person subject to FRA's 
safety regulations can submit a petition for a waiver from those 
requirements. FRA is proposing to revise two sections of part 213 
(Sec. Sec.  213.137 and 213.143) to incorporate longstanding waivers 
that, with certain limiting conditions, permit the use of flange-
bearing frogs and heavy-point frogs that do not comply with current FRA 
standards. FRA believes that under certain conditions, use of these 
types of frogs provide safety benefits by more evenly distributing 
loads across the frogs with minimal impact to rail surfaces, as 
compared to other types of rail frogs. Incorporating these waivers into 
FRA's regulations would result in industry cost-savings larger than 
from the waivers alone.
i. Heavy-Point Frogs
    A heavy-point frog (HPF) is a unique design that has a thicker frog 
point than a traditional frog. This unique design offers safety 
benefits over a traditional frog because of more inert mass to reduce 
metal fatigue from impact loading, greater durability, reduced 
susceptibility to deformation of the frog point, and better ability to 
guide the wheel flange toward the proper flangeway. In an HPF, the gage 
line is \11/32\ (0.3438) of an inch thicker than a traditional, rail-
bound manganese frog point. This reduces the standard guard check 
distance from 4 feet, 6\5/8\ (54.6250) inches to 4 feet, 6\29/64\ 
(54.4531) inches, which does not comply with minimum guard check 
distance for Class 5 track.
    As defined in 49 CFR 213.143, footnote 1, and as shown in Figure 1 
below, guard check gage is the distance between the gage line of a frog 
to the guard line (a line along the side of the flangeway nearest to 
the center of the track and at the same elevation as the gage line) of 
its guard rail or guarding face, measured across the track at right 
angles to the gage line (a line \5/8\'' below the top of the center 
line of the head of the running rail, or corresponding location of the 
tread portion of the track structure).
    The purpose of the minimum guard check gage is to ensure a 
vehicle's wheels are able to pass through the frog without one of the 
wheels (the right wheel in Figure 1) striking the frog point. In Figure 
1, there are two key dimensions: ``wheel check,'' which is the distance 
between the two wheels plus the wheel flange thickness at the gage line 
(\5/8\'' below the running surface); and ``guard check gage,'' which is 
defined above. As illustrated in Figure 1, guard check gage must be 
greater than or equal to the wheel check so there will be a ``flange-
frog point gap'' between the right wheel and frog point interface, when 
the left wheel flange passes against the guard rail. As stated above 
and further illustrated in Figure 1, this ensures the right wheel does 
not strike the frog point.
    Figure 1 depicts a standard frog, which has a standard guard check 
gage of 54.625'', meeting the requirement for Class 5 track (greater 
than or equal to 54\1/2\'' or 54.5''). A heavy-point frog has a 
standard guard check gage of 54.4531'',

[[Page 72531]]

which does not meet current FRA standards for Class 5 track but does 
meet the current standards for Class 4 track (greater than or equal to 
54.375'').
[GRAPHIC] [TIFF OMITTED] TP31DE19.000

    In 2003, FRA approved a waiver permitting operation of trains at 
Class 5 track speeds over certain HPFs at which the guard check gage, 
under existing 49 CFR 213.143, conforms to the standards applicable to 
Class 4 track. See docket number FRA-2001-10654 (available online at 
www.regulations.gov). Among other conditions to ensure safety, the 
waiver requires that the frog, and the guard rails on both tracks 
through the turnout containing the frog, be equipped with at least 
three through-gage plates (metal plates underneath the frog that expand 
across the entire frog to provide both vertical support and lateral 
restraint for the frog components) with elastic rail fasteners and 
guard rail braces that permit adjustment of the guard check gage 
without removing spikes or other fasteners from the crossties. The 
waiver also requires that track owners retain records of the location 
and description of each turnout containing an HPF, notify FRA prior to 
operating trains over a new HPF, and provide proper information and 
training to any employees designated to inspect or supervise 
restoration or renewal of areas containing an HPF. Each HPF must also 
bear an identifying mark. Since FRA initially granted the waiver in 
2003, FRA has renewed the waiver three times, most recently on February 
15, 2018. The waiver is currently set to expire on February 15, 2023.
    To date, no accidents have been reported to FRA as having occurred 
at or near locations where HPFs are installed. Accordingly, FRA 
believes that the safety benefits of HPFs have been proven. As 
discussed in more detail below in the section-by-section analysis for 
Sec.  213.143, FRA proposes to incorporate the waiver provisions into 
the regulation.
ii. Flange-Bearing Frog Crossing Diamonds
    Flange-bearing frogs (FBF) are different from the traditional 
tread-bearing frogs used by freight railroads in most crossing diamonds 
and turnouts in the United States. In traditional tread-bearing 
crossing diamonds, a vehicle's wheels must run over the gaps in the 
running rails. This creates significant dynamic loading that can damage 
both the diamond and components of the vehicle (e.g., the vehicle's 
wheels and axles). For FBFs, the flangeway is designed to support the 
wheels running on their flanges. There are ramps to provide a smooth 
transition from tread-bearing to flange-bearing and significantly 
reduce the dynamic wheel forces. This can greatly reduce noise and 
vibration, increase the service life of crossing diamonds and vehicle 
components, reduce the need for maintenance, and possibly decrease the 
need for speed restrictions in certain circumstances due to worn, 
damaged, or defective crossing diamonds.
    In 2000, FRA approved a waiver granting relief from the flangeway 
depth requirements in 49 CFR 213.137(a) as well as the limitation in 49 
CFR 213.137(d) restricting FBFs to Class 1 track. See docket number 
FRA-1999-5104 (available online at www.regulations.gov). Among other 
conditions, this initial waiver allowed track owners to install up to 
five FBF crossing diamonds in Class 2 or 3 track. FRA limited its 
initial approval to five FBF crossings under specific operational 
conditions and conditions requiring vehicle and track inspections 
designed to closely monitor the performance of the FBFs. In 2010, based 
on the successful implementation of the initial waiver and data 
gathered as a result, at industry's request, FRA granted a revised 
waiver allowing installation of FBF crossing diamonds on Classes 2 
through 5 track with crossing angles above 20 degrees unless movable 
guard rails are used. Among other conditions, the waiver required that 
newly installed FBF crossing diamonds be inspected daily during the 
first week of operation, weekly for the month after, and monthly 
thereafter. The waiver also required the track owner to prepare 
maintenance manuals and properly train its personnel. The waiver was 
renewed in September 2015, and is set to expire in September 2020.

[[Page 72532]]

    To date, no accidents have been reported to FRA as having occurred 
at or near FBFs. Accordingly, FRA believes that the safety benefits of 
FBFs have been proven and proposes to incorporate the waiver provisions 
into the regulation. Because the performance of the FBF crossing 
diamonds installed under the waiver is the primary basis for FRA's 
conclusion that these frogs are safe, FRA believes that it is in the 
best interests of public safety to retain, as much as reasonably 
possible, similar limitations imposed under the waiver.

V. Section-by-Section Analysis

    FRA seeks comments on all proposals made in this NPRM.

Section 213.1 Scope of Part

    Section 213.1 sets forth the scope of part 213. Paragraph (b) 
specifies that subparts A through F of part 213 apply to track Classes 
1 through 5 and that subpart G and certain individual sections of 
subpart A apply to track Classes 6 through 9. FRA proposes to amend 
paragraph (b) of this section to reference proposed Sec.  213.240 
(continuous rail testing). Together with proposed Sec.  213.240, this 
change would allow track owners to elect to use continuous rail testing 
conducted under Sec.  213.240 on Class 6 through Class 9 track to 
satisfy the requirement for internal rail testing under Sec.  213.339.

Section 213.5 Responsibility for Compliance

    Section 213.5 specifies the parties responsible for compliance with 
part 213. Paragraph (a)(3) of this section addresses persons 
responsible for overseeing operations over track that is known to be 
not in compliance with part 213. That paragraph requires operations 
over such track to be overseen by a person designated under Sec.  
213.7(a) who has ``at least one year of supervisory experience in 
railroad track maintenance.'' FRA is proposing to remove the 
requirement for the person overseeing operations on non-compliant track 
to have ``one year of supervisory experience in railroad track 
maintenance.'' This proposed change would conform to the proposed 
changes to Sec.  213.7, which are discussed below.
    Additionally, FRA proposes to add the following sentence to the end 
of paragraph (a)(3): ``If the operation is on Continuous Welded Rail 
(CWR) track, the person under whose authority operations are conducted 
must also be designated under Sec.  213.7(c).'' This change is meant to 
clarify that in order for a person to authorize operations over CWR 
track that does not meet all the requirements of part 213, the person 
must be designated and qualified by the track owner under Sec.  
213.7(c) to inspect CWR track or supervise the installation, 
adjustment, and maintenance of CWR track.
    Following issuance of a final rule, FRA will issue a schedule of 
civil penalties to provide guidance on penalties for violations of new 
and amended section of part 213. This guidance will be available on 
FRA's website at www.fra.dot.gov. Because such penalty schedules are 
statements of agency policy, notice and comment are not required prior 
to their issuance. See 5 U.S.C. 553(b)(3)(A). Nevertheless, commenters 
are invited to submit suggestions to FRA describing the types of 
actions or omissions for each proposed or amended regulatory section 
that would subject a person to the assessment of a civil penalty. 
Commenters are also invited to recommend what penalties may be 
appropriate, based upon the relative seriousness of each type of 
violation.

Section 213.7 Designation of Qualified Persons To Supervise Certain 
Renewals and Inspect Track

    Section 213.7 requires track owners to designate qualified persons 
to inspect track and supervise certain track restorations and renewals, 
and specifies the records related to these designations a track owner 
must maintain. The section also requires these qualified persons to 
have ``written authorization'' from the track owner to prescribe 
remedial actions to address identified nonconformities in the track. 
Paragraph (a)(1) of this section specifically requires that a person 
designated to supervise the restoration and renewal of track under 
traffic conditions have, among other things, either one year of 
supervisory experience in railroad maintenance or a combination of 
supervisory experience in track maintenance and training. During the 
TSS Working Group meetings, some members expressed the view that the 
requirement for supervisory experience in paragraph (a)(1) was 
unreasonable. Those members asserted that as written, an employee 
cannot be qualified to supervise restoration and renewal of track under 
paragraph (a)(1) unless he or she has supervisory experience in track 
maintenance, yet the employee may only be able to gain supervisory 
experience if he or she is first considered qualified under paragraph 
(a)(1). FRA agrees that requiring supervisory experience to qualify 
under paragraph (a)(1) creates a possible conflict in the regulatory 
language and proposes to remove the supervisory requirement in the 
paragraph.
    Paragraphs (a)(3), (b)(3), and (c)(4) each require that a qualified 
person possess ``[w]ritten authorization from the track owner to 
prescribe remedial actions.'' Although FRA believes that the term 
``written'' can be interpreted to encompass both physical hardcopies of 
an authorization as well as electronic authorizations, to avoid any 
possible confusion, consistent with the TSS Working Group's 
recommendation, FRA proposes to remove the term ``written'' from each 
of these paragraphs. The change would make clear that the required 
authorizations may be recorded and conveyed either in hardcopy or 
electronic form.
    Existing paragraph (e) of this section requires track owners to 
maintain ``written records'' of each designation in effect and the 
basis for that designation. Consistent with the proposed revisions to 
paragraphs (a)(3), (b)(3) and (c)(4), FRA proposes to revise this 
paragraph to remove the requirement to maintain ``written'' records. 
Records of designations made under Sec.  213.7 can be either in 
hardcopy or electronic form. FRA proposes to add new paragraph (e)(2) 
to require records of designations under Sec.  213.7 to include the 
date each designation is made. TSS Working Group members expressed the 
view that the date of an individual's designation is relevant and 
important information both to the track owner and to FRA, and FRA 
believes most, if not all, track owners already include this in their 
designation records. To incorporate this proposed revision, existing 
paragraph (e)(2) would be redesignated as paragraph (e)(3) and revised 
to require records to contain not only the basis for each designation 
as existing paragraph (e)(2) currently requires, but also to require 
track owners to include the method used to determine that the 
designated person is qualified. This change is intended to better 
conform with the requirements of existing Sec.  213.305(e) for high-
speed operations, and better describe what FRA means by the ``basis for 
each designation.'' To meet this requirement, a track owner could 
include information about the nature of any training courses the 
designated person participated in and how the track owner determined 
that the designated person successfully completed the course (e.g., 
test scores, demonstrated proficiency, etc.).
    Existing paragraph (e)(3) also requires designation records under 
Sec.  213.7 to include records of track inspections ``made by each 
designated qualified person.'' FRA proposes to remove the requirement 
as FRA finds it to be redundant when considering the current 
requirements of Sec.  213.241, Inspection

[[Page 72533]]

records. Under existing Sec.  213.241, track owners are required to 
maintain records of track inspections made by qualified inspectors and 
make those records available to FRA. Accordingly, existing paragraph 
(e)(3) would be redesignated as new paragraph (f) and revised. As under 
the existing regulation, a track owner would be required to make the 
records kept under paragraph (e) available for inspection and copying 
by FRA. FRA proposes rephrasing the paragraph to require that FRA make 
its request for records during normal business hours and provide the 
track owner ``reasonable notice'' before requiring production. The 
meaning of the term ``reasonable notice'' depends on the specific facts 
of each situation (e.g., time of day, day of the week, number of 
records requested, etc.). FRA does not intend these revisions to 
substantively change recordkeeping requirements or FRA's existing 
inspection practices. These revisions are primarily intended to clarify 
how FRA currently enforces the regulation.

Section 213.9 Classes of Track: Operating Speed Limits

    Section 213.9 sets forth the maximum allowable operating speeds for 
both passenger and freight trains for excepted track, and track Classes 
1 through 5 (track speeds up to 90 miles per hour for passenger trains 
and up to 80 mph for freight trains). Paragraph (b) of this section 
addresses situations in which a track segment does not meet the 
requirements for its intended class and specifies that if a segment of 
track does not at least meet the requirements for Class 1 track, 
operations may continue under the authority of a person designed under 
Sec.  213.7(a) ``who has at least one year of supervisory experience in 
railroad track maintenance'' for up to 30 days. Consistent with the 
revisions proposed to Sec.  213.7(a), FRA proposes to revise this 
paragraph to remove the requirement that a person designated under 
Sec.  213.7(a) have a least one year of ``supervisory'' experience in 
railroad track maintenance. Please see the above discussion of Sec.  
213.7(a).

Section 213.11 Restoration or Renewal of Track Under Traffic Conditions

    Existing Sec.  213.11 requires operations over track undergoing 
restoration or renewal under traffic conditions and not meeting all the 
requirements of part 213 to be conducted under the continuous 
supervision of a person designated under Sec.  213.7(a) with ``at least 
one year of supervisory experience in railroad track maintenance.'' 
Consistent with the proposed changes to Sec.  213.7(a), FRA proposes to 
remove the requirement that the person supervising restoration or 
renewal of track under traffic conditions have a minimum of one year of 
``supervisory'' experience in track maintenance. Additionally, FRA 
proposes to add the requirement that if the restoration or renewal is 
on continuous welded rail (CWR) track, the person must also be 
qualified under Sec.  213.7(c). Because Sec.  213.7 already requires 
that anyone designated under Sec.  213.7(a) or (b) who inspects or 
supervises maintenance of CWR track must also be designated under Sec.  
213.7(c), this change to Sec.  213.11 is simply a clarifying revision 
that restates the existing regulatory requirement.
    Additionally, FRA proposes adding a sentence stating the 
``operating speed cannot be more than the maximum allowable speed under 
Sec.  213.9 for the class of track concerned.'' This is meant to 
clarify that the person designated under Sec.  213.7(a), and (c) if 
applicable, may not authorize movement over the track the person is 
supervising at speeds greater than the maximum allowable operating 
speed for the class of track concerned.

Section 213.113 Defective Rails

    Section 213.113 prescribes the required actions that must be taken 
when a track owner learns that a rail contains an indication of a 
defect and after the track owner verifies the existence of the defect. 
FRA proposes to modify the second sentence in paragraph (b) so that it 
begins with ``except as provided in Sec.  213.240, . . . .'' This 
change is simply meant to clarify that the requirement that an 
indication of a defect be verified within four hours would not apply if 
a track owner elects to conduct continuous testing under proposed Sec.  
213.240.

Section 213.137 Frogs

    Section 213.137 contains the standards for use of frogs. Existing 
paragraph (a) prescribes limits on the flangeway depth of a frog. On 
June 27, 2000, FRA granted a waiver (docket number FRA-1999-5104) to 
members of the railroad industry allowing the installation of flange-
bearing frogs (FBFs) used in crossing diamonds in track Classes 2 
through 5, and exempting those diamonds from the flangeway depth 
requirements of paragraph (a), subject to certain conditions. As 
discussed in more detail in section II.C of this NPRM, the waiver was 
renewed multiple times, most recently on September 17, 2015, and will 
expire on September 17, 2020. After careful review of safety 
performance under the waiver and analysis of track-caused derailments, 
FRA has not identified any negative safety implications for use of 
FBFs.
    Based on the above, as well as the discussion in section II.C of 
this NPRM, FRA proposes to modify Sec.  213.137 by adding paragraph (e) 
and allowing the use of FBFs in crossing diamonds in Classes 2 through 
5 track consistent with the conditions of the existing waiver.\2\ 
Because the performance of the FBFs installed under the waiver is the 
primary basis for FRA's conclusion that these crossing diamonds are 
safe, FRA believes that it is in the best interests of public safety to 
retain, as much as reasonably possible, the same limitations imposed 
under the waiver.
---------------------------------------------------------------------------

    \2\ As noted above, Sec.  213.137(d) already allows the use of 
FBFs in Class 1 track.
---------------------------------------------------------------------------

    The limitation in proposed paragraph (e)(1) would require the 
crossing angle to be greater than 20 degrees unless movable guard rails 
are used. When a crossing diamond has a smaller crossing angle, there 
is a heightened risk of damage to the rail head when the wheel flange 
crosses over it. Proposed paragraph (e)(2) would require that the track 
owner document the location, crossing angle, tonnage, speed, direction, 
and type of traffic for each FBF utilized under paragraph (e). Type of 
rail traffic means passenger, freight, and hazardous material. This 
information would be required to be made available to FRA upon request 
following reasonable notice during normal business hours.
    Proposed paragraph (e)(3) would require the track owner to prepare 
a maintenance manual for FBFs in crossing diamonds and make copies of 
that manual available to all personnel responsible for inspecting or 
repairing any such FBFs. Proposed paragraph (e)(3) would also require 
that all personnel responsible for inspecting or repairing any FBF in a 
crossing diamond be properly trained. FRA does not specify what must be 
included in the maintenance manuals or covered in the training. 
Instead, FRA expects that a manual would include all necessary 
information relevant to the successful inspection and maintenance of an 
FBF and organized in a manner that allows the person performing the 
inspection or maintenance, or both, to find the information in a timely 
fashion. Maintenance manuals can be prepared by entities other than the 
track owner (e.g., the manufacturer of the FBF or the railroad). 
Training must be of a sufficient duration and quality to ensure the 
trainee has a sufficient understanding to properly inspect and maintain 
FBFs. Additionally, the railroad or track owner must ensure that

[[Page 72534]]

the trainee is actually ``trained.'' This could be accomplished, for 
example, through testing, on-the-job mentoring, or any other means 
sufficient to demonstrate that the trainee fully understands and 
retains the information necessary to properly inspect and maintain 
FBFs. FRA invites comment on whether FRA's intent to implement the rule 
in this manner and the proposed meaning of the terms used in paragraph 
(e)(3) should be defined in the rule text.
    FRA has not proposed to adopt the condition, included in the 
waiver, mandating an increased inspection frequency for FBFs. Under the 
waiver, track owners are required to inspect a newly-installed FBF 
daily during the first week of operation, and weekly for the month 
thereafter. Since FBFs have been proven safe under the long-standing 
waiver and the waiver has produced no data that FRA is aware of 
indicating a higher likelihood for defects in newly-installed FBFs when 
compared to traditional frogs, FRA does not believe these increased 
inspections are warranted and has not proposed to include that 
condition. FRA invites comment on whether this condition should be 
included in the final rule and, if so, any data that would justify such 
inclusion.

Section 213.143 Frog Guard Rails and Guard Faces; Gage

    This section prescribes a minimum and maximum value for guard check 
and guard face gages, respectively. Guard check gage is the distance 
between the gage line of a frog and the guard line of its guardrail or 
guarding face. Allowable minimum dimensions vary with track 
classification, i.e., train speed.
    As discussed in more detail in section IV.C of this NPRM, in 2003, 
FRA granted a waiver (docket number FRA-2001-10654) to members of the 
railroad industry allowing operation of trains at Class 5 speeds over a 
heavy-point frog (HPF) with guard check gages conforming to the 
standards for Class 4 track frogs. FRA granted three extensions of this 
waiver, most recently on February 15, 2018, and it will expire on 
February 15, 2023. After careful review of safety performance under the 
waiver and analysis of track-caused derailment data, FRA believes that 
the safety case has been proven and proposes to incorporate the waiver 
provision into the regulation. Because the performance of the HPFs 
installed under the waiver is the primary basis for FRA's conclusion 
that these frogs are safe, FRA believes that it is in the best 
interests of safety to retain, as much as reasonably possible, the same 
limitations imposed under the waiver.
    Consistent with the conditions of the existing waiver, FRA proposes 
the addition of footnote 3 to the table in Sec.  213.143, which would 
allow the guard check gage for HPFs on Class 5 track to be less than 
the current 4 feet, 6\1\/2-inch minimum, but not less than 4 
feet, 6\3\/8 inches (the current minimum for frogs in Class 
4 track). Proposed paragraph (a) of footnote 3 would require that each 
track owner maintain records of the location and description of each 
HPF and make that information available to FRA upon request during 
normal business hours following reasonable notice. Proposed paragraph 
(b) of footnote 3 would require that each HPF and guard rails on both 
rails through the turnout be equipped with at least three serviceable 
through-gage plates with elastic rail fasteners and guard rail braces 
that permit adjustment of the guard check gage without removing spikes 
or other fasteners from the crossties.
    Proposed paragraph (c) of footnote 3 would require that each track 
owner provide proper maintenance manuals, instructions, and training to 
any Sec.  213.7 designated employees who inspect track or supervise 
restoration and renewal of track, or both, in areas that include 
turnouts with HPFs. As with the proposed revisions to Sec.  213.137, 
FRA does not specify what must be included in the maintenance manuals 
or covered in the training. Instead, FRA expects that a manual will 
include all necessary information relevant to the successful inspection 
and maintenance of an HPF and organized in a manner that would allow 
the person performing the inspection or maintenance, or both, to find 
the information in a timely fashion. Maintenance manuals can be 
prepared by entities other than the track owner (e.g., the manufacturer 
of the HPF or the railroad). Training likewise must be of a sufficient 
duration and quality to ensure the trainee has a sufficient 
understanding to properly inspect and maintain HPFs. Additionally, the 
track owner must ensure that the trainee is trained. This can be 
accomplished, for example, through testing, on-the-job mentoring, or 
any other means sufficient to demonstrate that the trainee fully 
understands and retains the information necessary to properly inspect 
and maintain HPFs. FRA invites comment on whether FRA's intent to 
implement the rule in this manner and the proposed meaning of the terms 
used in paragraph (c) should be defined in the rule text.
    Finally, proposed paragraph (d) of footnote 3 would require that 
each HPF bear an identifying mark that identifies the frog as an HPF. 
This mark can be applied by the track owner, railroad, or the HPF 
manufacturer. The mark used must be described in the instructions given 
to the employees discussed in proposed paragraph (c). The identifying 
mark must be of a type and size, and in a location, that will allow the 
employees to quickly and effectively determine that it is an HPF.

Section 213.233 Visual Track Inspections

    Section 213.233, currently titled ``Track inspections,'' sets forth 
general requirements for the frequency and method of performing 
required visual track inspections on excepted track and track Classes 1 
through 5. To better reflect the scope of this section, FRA proposes to 
add the word ``visual'' to the section heading so that it would read 
``Visual track inspections.'' No substantive change is intended. 
Because other sections in part 213 for these track speeds cover 
different types of inspections and inspection methods (e.g., automated 
inspections, inspections of rail, etc.), this proposed change would 
clarify that this section deals specifically with visual track 
inspections. This proposal is also consistent with the current heading 
for the corresponding high-speed track section, Sec.  213.365, ``Visual 
inspections.'' As discussed below, FRA proposes to revise the heading 
for Sec.  213.365 so that the headings are the same for both Sec. Sec.  
213.233 and 213.365.
    Paragraph (b) of this section requires visual track inspections to 
be made on foot or by ``riding over'' the track at a speed allowing the 
inspector to visually inspect the track structure for compliance; and, 
when inspecting from a vehicle, this section sets the vehicle's maximum 
speed at 5 m.p.h. when ``passing over'' track crossings and turnouts. 
Paragraph (b) also specifies that one inspector in a vehicle may 
inspect up to two tracks at one time under certain conditions, 
including that the second track is not centered more than 30 feet from 
the track upon which the inspector ``is riding.'' Similarly, two 
inspectors may inspect up to four tracks from one vehicle under certain 
conditions, including that the second track center is within 39 feet 
from the track on which the inspectors ``are riding.'' For grammatical 
consistency throughout this section, FRA proposes revising the terms 
``riding over'' and ``passing over'' to ``traversing'' in this 
paragraph and, for the same reason, FRA is also proposing to revise the 
terms ``is riding'' and ``are riding'' to ``traverses'' and 
``traverse.''

[[Page 72535]]

    Additionally, FRA proposes removing the terms ``upon which'' from 
paragraphs (b)(1) and (2), and changing ``is actually'' to ``must be'' 
in paragraph (b)(3). These changes are not meant to affect the meaning 
of Sec.  213.233, but are instead made for grammatical consistency.
    As discussed in more detail above in section IV.B of this NPRM, FRA 
proposes to remove the last sentence of paragraph (b)(3), also known as 
the high-density commuter line exception. Paragraph (b)(3) requires, 
among other things, that each main track be traversed by a vehicle or 
inspector on foot at least once every two weeks, and every siding at 
least every month. The high-density commuter line exception currently 
applies where track time does not permit on-track vehicle inspection 
and where track centers are 15 feet or less apart and exempts those 
operations from the inspection method requirements of paragraph (b)(3). 
FRA's proposal to remove this exception is directly responsive to 
Congress's direction in sec. 11409 of the FAST Act and NTSB's Safety 
Recommendation R-14-11. In addition, FRA understands that no track 
owner currently utilizes this exception, so its removal will have 
little to no impact on the regulated industry.
    FRA proposes three revisions to paragraph (c). First, FRA proposes 
to add the word ``visual'' before ``track inspection'' in the 
introductory text. This is simply to make paragraph (c) consistent with 
the new heading for Sec.  213.233 and has no effect on the meaning of 
paragraph (c). Second, FRA proposes adding footnote 1 after the word 
``weekly'' in the table in paragraph (c). The proposed footnote defines 
the term ``weekly'' to be a seven-day period beginning on Sunday and 
ending on Saturday. This definition is consistent with FRA's past 
interpretation and enforcement practice, as well as FRA's public 
guidance included in Volume II, Chapter 1, of the Track and Rail and 
Infrastructure Integrity Compliance Manual, March 1, 2018, available on 
FRA's public eLibrary website (https://www.fra.dot.gov/eLib/Find).
    Third, FRA proposes to add footnote 2 after the term ``passenger 
trains'' in the table in paragraph (c). The proposed language was 
suggested to the TSS Working Group by the Rail Heritage Association and 
FRA agrees that it would reduce unnecessary burden on certain regulated 
entities while not negatively impacting safety. This proposed footnote 
would exempt, in two situations, entities from the required twice-
weekly inspection requirement for track carrying passenger trains if 
the passenger train service consists solely of tourist, scenic, 
historic, or excursion operations as defined in 49 CFR 238.5. In the 
first situation, this exemption would apply where no passenger service 
is operated over the track during the inspection week. In the second 
situation, this exemption would apply where passenger service is 
operated during the inspection week but only on a weekend (Saturday and 
Sunday) or a 3-day extended weekend (Saturday and Sunday plus either a 
contiguous Monday or Friday) and an inspection is conducted before, but 
not more than one day before, the start of the weekend or 3-day 
extended weekend.
    FRA also proposes to revise paragraph (d). Specifically, FRA 
proposes the addition of the phrase ``the Sec.  213.7 qualified'' at 
the beginning of the paragraph to clarify that ``the person'' making 
the inspection that the existing rule text refers to is the qualified 
track inspector designated under Sec.  213.7. Additionally, FRA 
proposes adding a sentence at the end of paragraph (d) stating that any 
subsequent movements to facilitate repairs on track that is out of 
service must be authorized by a Sec.  213.7 qualified person. This 
section is silent as to whether or when movement over track that is out 
of service is permissible. FRA recognizes that certain movements are 
necessary to facilitate repairs and therefore does not interpret or 
enforce the current regulatory language to bar such movements of 
equipment and materials on track that is out of service. The proposed 
revision is meant to embody that practice and interpretation and 
prevent possible confusion.

Section 213.240 Continuous Rail Testing

    FRA proposes to add this new section to allow track owners to 
satisfy the requirements for internal rail inspections under Sec.  
213.237, or Sec.  213.339 (for Class 6 track and higher), using 
continuous rail testing. This proposed section would allow for greater 
flexibility in the rail flaw detection process and additional time to 
analyze the data collected during continuous rail testing and field-
verify indications of potential rail flaws. This additional time 
allotment would allow for improvements in planning and execution of 
rail inspections and rail defect remediation, thereby lessening the 
impact on rail operations. As a result, more track time should become 
available to conduct maintenance and increase inspections. However, as 
continuous testing is a more complex process compared to the 
traditional stop-and-verify rail inspection, certain conditions must be 
met to ensure that this elective process is conducted properly and 
provides sufficient recordkeeping and transparency to allow for 
adequate oversight by FRA.
    The continuous rail test method consists of a vehicle using 
ultrasonic testing, in some cases augmented by other flaw detection 
systems, to detect defects in the rail. The raw test data is 
transmitted from the vehicle to a centralized location to be analyzed 
by a team of experts, using multiple advanced techniques, including 
comparison to past data from the same location (sometimes referred to 
as ``change detection''). Once analyzed, suspect locations (locations 
where the data indicates the possible presence of a rail defect) are 
then transmitted back to the field for on-site verification to 
determine if an actual rail flaw exists.
    Under existing Sec.  213.113(b), when a track owner learns that a 
rail contains an indication of one of the defects listed in the table 
in Sec.  213.113(c), the track owner must field-verify the indication 
within four hours. Proposed Sec.  213.240 would exempt track owners who 
elect to utilize continuous rail testing from the requirement to field-
verify the indication within four hours. This increased verification 
period is justified by the logistical and safety benefits of continuous 
rail testing. Because the test vehicle does not have to stop and verify 
each suspected defect, more track can be inspected at greater speeds 
with significantly less interruption to revenue service. The more time-
consuming analysis of the test data can be conducted at an off-site 
location and reviewed at an optimal speed not related to the speed of 
the test vehicle. Additionally, the test data can be more thoroughly 
compared to past test runs over the same section of track to better 
identify possible defect propagation and growth. The decreased 
interruption to revenue service would also allow track owners to test 
track more frequently. FRA believes that continuous rail testing would 
substantially decrease the overall cost to the railroad industry while 
not negatively affecting safety.
    As noted in section IV.A above, since 2009, a number of railroads 
have implemented continuous rail testing programs through limited, 
conditional waivers of 49 CFR 213.113(b). That section requires track 
owners, who learn that a rail in their track contains an indication of 
a defect listed in the table in Sec.  213.113(c), verify the indication 
within four hours and take remedial action in accordance with the 
table. The remedial action table in Sec.  213.113(c) prescribes the 
required remedial actions

[[Page 72536]]

(and timelines for taking those actions) based on the severity of the 
defects identified. In other words, based on the size and severity of 
specific types of defects, there is a built-in safety threshold in the 
remedial action table for each known defect depending on the defect 
type and size. Generally, the waivers FRA has granted to date allowing 
railroads to conduct continuous rail testing programs provide railroads 
with a longer period of time to verify indications of defects than 
permitted by Sec.  213.113(b), and allow railroads to prioritize the 
verification and remediation of those defects based on the severity of 
the indications and defects identified. Suspect indications of defects 
are not prioritized arbitrarily, but are put into categories based on 
ultrasonic reflective responses as viewed by the analyst.
    Under the continuous rail test process, analysts interpret the 
collected ultrasonic reflective responses, which allows them to 
estimate the defect type and size. As explained in more detail below, 
when these responses indicate a suspected defect above the threshold 
that, if verified, would require remedial action note ``A,'' ``A2,'' or 
``B'' under the table contained in Sec.  213.113(c), that suspect 
location must be field-verified within the timeframe listed in proposed 
Sec.  213.240(e)(2), and is commonly referred to in the industry as a 
``priority one.'' The ``A,'' ``A2,'' and ``B'' remedial actions are 
required when a defect is at or above a specific size as outlined in 
the table in Sec.  213.113(c).
    Those suspected defects that, if verified, would not require 
remedial actions ``A,'' ``A2,'' or ``B,'' must be field-verified within 
the timeframe listed in proposed Sec.  213.240(e)(1), and are commonly 
referred to in the industry as either a priority two or a priority 
three, depending on the clarity of the indication. Often, when the 
ultrasonic test data produces a response where the analyst believes a 
defect is present because of the strength of the ultrasonic reflective 
signal, but that signal does not indicate a suspect defect of the type 
and/or size requiring remedial action ``A,'' ``A2,'' or ``B,'' the 
track owner lists the indication as a priority two. All other suspect 
locations identified by the analyst as potential defects or 
questionable ultrasonic responses are often marked as priority three 
suspect locations by the track owner. These so-called priority threes 
are indications where the ultrasonic reflective data does not produce a 
clear indication of defect type or size, but produces an unfamiliar or 
questionable response. Since many variables affect ultrasonic 
responses, the priority three suspect type is the most commonly used 
since it requires the hand verifier to check that location to ensure 
nothing is being missed or misinterpreted that might result in a rail 
failure and subsequent derailment.
    The Sec.  213.113(c) remedial action table reflects the fact that 
all verified defects pose a potential risk of sudden failure, depending 
on conditions, even with defects deemed to be less severe than others. 
Regardless of the defect size and type, once a rail failure occurs, 
there is a potential for a catastrophic accident. Data from the 
existing waivers demonstrates that, while less than 2% of the suspected 
priority three defects are found to be actual rail defects, priority 
three defects account for approximately 85% of the field-verified 
defects marked and removed from the tracks as a result of continuous 
testing. Thus, while priority three defects have a much higher 
probability of a false positive, they are also by far the most common 
indication of an actual defect. Accordingly, FRA believes that safety 
necessitates continuing to require the field verification of all 
defects identified by tests carried out under Sec.  213.237 or Sec.  
213.239.
    FRA requests comment, however, on the feasibility and desirability 
of establishing a generally applicable, performance-based requirement 
differentiating different categories of defects and appropriate field 
verification and remediation requirements, and whether there are any 
types of defects that should be exempted from field verification and/or 
remediation requirements.
    Proposed paragraph (a) would allow track owners to use continuous 
rail testing instead of complying with Sec.  213.113(b), provided the 
track owner complies with the minimum requirements of Sec.  213.240. 
Proposed paragraph (a) also makes clear that the track owner must still 
comply with all other requirements of Sec.  213.113, as well as all 
requirements of proposed Sec.  213.240. Specifically, proposed Sec.  
213.240 would not make any changes to the remedial action(s) a track 
owner must take after field verification of a suspect location 
determines a rail defect does exist. In other words, Sec.  213.240 
provides additional time to field-verify a defect, but once verified, 
the track owner must immediately take appropriate remedial action as 
described in Sec.  213.113(c).
    Proposed paragraph (b) outlines the minimum procedures that a track 
owner must adopt to conduct continuous rail testing under Sec.  
213.240. Prior to starting a continuous testing program, a track owner 
must adopt procedures that comply with this section. Rail testing is 
vital to the prevention of track-caused accidents, and documented 
procedures are necessary to ensure continuous rail testing works 
consistently and effectively, and that those involved understand their 
responsibilities and have a resource they can consult if they have any 
questions. These minimum procedures are designed to allow each track 
owner flexibility in determining the best approach to conduct 
continuous testing.
    Proposed paragraph (b)(1) would require continuous rail testing 
procedures address how test data will be transmitted and analyzed. This 
would include how the test data is transmitted from the test vehicle to 
the offsite facility for analysis and how the analyzed test data and 
findings are to be transmitted to those responsible for field 
verification and remediation. The procedures must also cover how the 
data is to be analyzed, including comparing the test data to data from 
prior test runs. The provision is intentionally general to allow track 
owners to tailor their procedures to their own circumstances and gives 
the necessary flexibility for those procedures to be revised as new 
information and technology becomes available. The lines of 
communication and means of analysis must be covered in the track 
owner's procedures so that the parties involved understand the process. 
This is vitally important because an error in how the data is 
transmitted or analyzed can result in a rail defect going undetected or 
unaddressed, potentially causing a derailment.
    Proposed paragraph (b)(2) would require continuous rail testing 
procedures address how suspect locations are to be identified for field 
verification. As discussed in greater detail below, proposed paragraphs 
(e) and (f) would require the suspect location be identified and 
recorded in a manner that allows the qualified person under Sec.  
213.238 to accurately locate the suspect location with repeatable 
accuracy during field verification. Proposed paragraph (b)(2) requires 
the continuous rail testing procedures cover how that is to be done--
for example, what information will be provided to the personnel 
responsible for field verification (e.g. GPS coordinates) and, if 
necessary, what steps must those personnel take to ensure they 
accurately use that information depending on the actual field 
conditions. Additionally, FRA understands that some entities currently 
performing continuous testing may require field-verifiers to coordinate 
with the person who conducted the

[[Page 72537]]

analysis of the test data for certain categories of defects to ensure 
they accurately locate the suspect location. Track owners that adopt 
such a practice must include it in their procedures.
    Proposed paragraph (b)(3) would require the procedures discuss how 
suspect locations will be categorized and prioritized according to 
their potential severity. As noted below, proposed paragraph (e) 
includes different time limits for field verification of suspected 
defects depending on their type. Proposed paragraph (b)(3) requires the 
track owner's procedures cover how those different categories of 
suspected defects will be designated as well as any additional 
categorization, or sub-categories, that the track owner decides to use. 
This would include what terminology the track owner decides to use for 
the different categories, and is necessary so that all parties involved 
can understand the reports and documentation created by the continuous 
testing process.
    Proposed paragraph (b)(4) would require the procedures address how 
suspect locations will be field-verified, and is necessary so those 
responsible for field verification understand what they must do. 
Accurate field verification is a vitally important part of continuous 
testing, and rail testing in general, because it is the process by 
which the track owner determines whether a rail defect exists or not, 
and if so, how serious. As with all the minimum procedures in proposed 
paragraph (b), the provision is intentionally general and intended to 
give flexibility to the track owner to determine how best to 
effectively field-verify. New research and technology may change how 
field verification is conducted, and this provision is intended to 
allow the procedures to be revised accordingly.
    Proposed paragraph (b)(5) would require continuous testing 
procedures cover how suspect locations will be designated following 
field verification. The designation of suspect locations following 
field verification should, at minimum, allow the reviewing individual 
to determine the outcome of the field verification and, if a rail 
defect was found, the type and size of the defect. In other words, 
proposed paragraph (b)(5) would require the procedures explain the 
process for how the results of field verification will be recorded and 
the terminology used by the track owner to note the outcome and 
findings. If field verification does not confirm a defect exists at a 
suspect location, the designation may specify the reason(s) why the 
continuous test data indicated a suspect location (e.g., the presence 
of a surface condition).
    Proposed paragraph (c) would require the track owner to designate 
and record the type of rail test to be conducted, whether continuous or 
stop-and-verify, prior to commencing the testing. Track owners may 
elect to conduct continuous testing in conjunction with stop-and-verify 
rail testing. However, a determination must be made prior to 
commencement of the test as to which type of test will be conducted on 
a given section of track, and that decision must be properly documented 
to ensure that the effectiveness of the inspection can be adequately 
evaluated for efficacy and reporting requirements. If the type of rail 
testing changes after the test has been commenced, the track owner must 
document that change, including the time the test was initially 
started, the time it was changed, the milepost where the test started, 
the milepost where the test changed, and the reason for the change. 
These records must be made available to FRA upon request during regular 
business hours following reasonable notice. To conduct oversight and 
ensure safety, FRA must know the type of test utilized on a section of 
track, because the type of test will dictate both the necessary 
procedures and, more importantly, the required time period for field 
verification of a suspected defect.
    Additionally, proposed paragraph (b)(1) would require that at least 
10 days prior to commencement of a continuous rail test, the track 
owner must designate and record whether the test is being conducted to 
satisfy the requirement for an internal rail inspection under Sec.  
213.237, or Sec.  213.339 where applicable. As discussed in greater 
detail above, track owners are required to conduct a sufficient number 
of internal rail inspections to satisfy the requirements of Sec.  
213.237, or Sec.  213.339 where applicable. A continuous rail test 
conducted to meet the minimum number of required internal rail 
inspections must comply with proposed Sec.  213.240, including the 
field verification requirements under proposed paragraph (e). Track 
owners are of course permitted to conduct continuous rail tests above 
and beyond the minimum requirements of Sec.  213.237, or Sec.  213.339 
where applicable. Those additional rail tests (that are not intended to 
meet the minimum number required by Sec.  213.237, or Sec.  213.339 
where applicable), are not required to meet the requirements of 
proposed Sec.  213.240, and the track owner therefore cannot rely on 
such tests to demonstrate compliance with either Sec.  213.237 or Sec.  
213.339. As such, the track owner must designate and record whether the 
test is being conducted to satisfy the minimum frequency requirements 
of Sec.  213.237, or Sec.  213.339 where applicable, at least 10 days 
in advance of the test so that FRA can conduct oversight and ensure the 
proper procedures are being followed.
    Proposed paragraph (d) lists required qualifications for certain 
persons involved in key aspects of the continuous testing program. 
Proposed paragraph (d)(1) would require that an operator of a 
continuous rail test vehicle be qualified under Sec.  213.238. Section 
213.238 lists the qualification requirements for operators of rail test 
vehicles conducting stop-and-verify rail testing. FRA believes that the 
same qualification requirements should apply to operators of continuous 
test vehicles because, like operators of stop-and-verify test vehicles, 
they must ensure that the vehicles conduct a valid search and function 
as intended, be able to interpret relevant equipment responses, and 
determine that a continuous valid search has been conducted.
    Proposed paragraph (d)(2) would require that the internal rail 
inspection data be reviewed and interpreted by a person qualified to 
interpret the equipment responses. FRA is intentionally not proposing 
specific qualification requirements but instead proposes to leave it up 
to the track owner to ensure the necessary procedures are in place for 
its specific system so that the persons reviewing and interpreting the 
data have been properly trained and tested. An analyst may not 
necessarily need to have intimate knowledge of the inner workings of 
the test equipment, but must be trained on how to properly assess the 
equipment responses to determine when a possible rail defect exists and 
field verification is necessary. The track owner or a designee shall 
have a process in place to ensure all persons responsible for the 
interpretation of the data are competent and capable of that task. By 
using the word ``qualified,'' FRA does not simply mean that the track 
owner has designated an individual as qualified. To be ``qualified,'' 
the persons must be properly trained and tested, and thus possess the 
necessary knowledge and ability to accurately and competently review 
and interpret the rail test data and properly identify suspected rail 
defects.
    Proposed paragraph (d)(3) requires that all suspected locations be 
field-verified by a person qualified under Sec.  213.238. FRA is aware 
that this is the same qualification required for the continuous test 
vehicle operators and

[[Page 72538]]

believes that an understanding of the vehicle systems is necessary to 
accurately understanding the test data, find the suspected location, 
and successfully field-verify the suspected defect.
    Proposed paragraph (e) would require that the continuous test 
process, at a minimum, produce a report containing a systematic listing 
of all suspected locations that may contain any defect listed in the 
Remedial Action Table of Sec.  213.113(c). The suspect location must be 
identified with sufficient information so that a qualified person under 
Sec.  213.238 can accurately locate and field-verify each suspected 
defect. FRA is intentionally not prescribing how a suspect location is 
identified and proposes to leave it up to the track owner because it 
may be affected by specific circumstances facing each track owner.
    FRA notes that when proposed paragraph (e) is read in conjunction 
with proposed paragraph (f), the suspect location must be identified 
and recorded in a manner that allows the qualified person under Sec.  
213.238 to accurately locate the suspect location with repeatable 
accuracy. This could include Global Positioning System (GPS) 
coordinates, but for locations where GPS does not work, such as 
tunnels, the track owner must have another procedure in place to 
accurately identify the exact location of the suspected defects. FRA 
also recognizes that the locations likely cannot be listed with perfect 
accuracy and that there must be some acceptable margin of error. 
Although FRA does not quantify the exact size of an allowable margin of 
error, it cannot be of a size that would affect the ability of the 
qualified person under Sec.  213.238 to accurately locate the suspected 
defect noted on the report. For example, if the margin of error is too 
large, there is the risk that the qualified person may confuse the 
suspected defect noted on the report with another condition present in 
or on the rail in the vicinity of the actual suspected defect.
    Proposed paragraphs (e)(1) and (2) contain specific timeframes in 
which field verification of suspected locations must be conducted. For 
purposes of verification timeframes, the indications are classified 
into two categories: Those suspected defects that, if verified, would 
require remedial action note ``A,'' ``A2,'' or ``B'' in the Remedial 
Action Table; and all other defects. Additionally, indications of a 
possible broken rail with rail separation must be protected 
immediately. As discussed below, field verification would be required 
within 24 hours of completion of the test run for suspected defects 
falling into the first category and 72 hours for defects falling into 
the second category. Further, FRA understands that new technologies or 
processes may be developed that could allow for the collection of data 
to occur around-the-clock or for extended periods of time. Thus, FRA 
proposes adding an additional 12 hours to the verification time limits 
as the absolute maximum period within which a suspected defect must be 
field-verified.
    Proposed paragraph (e)(1) would require, subject to the 
requirements of proposed paragraphs (e)(2) and (3), that the track 
owner field-verify any suspect location within 72 hours after 
completing the test run, or within 84 hours of the detection of the 
suspect location, whichever is earlier. This, along with proposed 
paragraphs (e)(2) and (3), would take the place of the current 
requirement that suspect locations be field-verified within 4 hours. 
Proposed paragraph (e)(1) would apply to any suspect location that does 
not indicate a broken rail with rail separation or indicate a suspected 
defect that, if verified, requires remedial action note ``A,'' ``A2,'' 
or ``B'' under the table contained in Sec.  213.113(c). In other words, 
this proposed paragraph would apply to suspected defects that pose a 
slightly lower immediate safety risk than the ones covered in proposed 
paragraphs (e)(2) and (3). FRA believes allowing 72 hours from the 
completion of the test run, or 84 hours from detection of the suspect 
location, to field-verify the suspected defect would provide sufficient 
flexibility to conduct continuous rail testing and have the test data 
analyzed while also ensuring safe operations. FRA also recognizes that 
a single test run may span a significant distance and time. Thus, FRA 
proposes a maximum limit of 84 hours from detection of a suspect 
location to when it must be field-verified, regardless of when the test 
run has been officially completed.
    Proposed paragraph (e)(2) would require that any suspect location 
containing a suspected defect that, if verified, would require remedial 
action note ``A,'' ``A2,'' or ``B'' under the table contained in Sec.  
213.113(c) must be field-verified no more than 24 hours after 
completion of the test run, or 36 hours after detection of the suspect 
location, whichever is earlier. The remedial action need not be the 
only required remedial action, just one of the options. Thus, if 
remedial action note ``A,'' ``A2,'' or ``B'' are listed in the remedial 
action column (the last column) of the table in Sec.  213.113(c), the 
defects associated with those remedial actions would be covered under 
proposed paragraph (c)(3) and any suspect location possibly containing 
one of those defects must be field-verified within the time required by 
proposed paragraph (c)(3). Based on the table in Sec.  213.113(c), the 
covered defects include:
     All compound fissures;
     Transverse fissures 60 percent or greater;
     Detail fractures 60 percent or greater;
     Engine burn fractures 60 percent or greater;
     Defective welds 60 percent or greater;
     Horizontal split head greater than 4 inches or where there 
is a break out in the rail head;
     Vertical split head greater than 4 inches or where there 
is a break out in the rail head;
     Split web greater than 4 inches or where there is a break 
out in the rail head;
     Piped rail greater than 4 inches or where there is a break 
out in the rail head;
     Head web separation greater than 4 inches or where there 
is a break out in the rail head;
     Defective weld greater than 4 inches or where there is a 
break out in the rail head;
     Bolt hole crack greater than 1.5 inches or where there is 
a break out in the rail head;
     Broken base greater than 6 inches; and
     Ordinary breaks.
    Proposed paragraph (e)(3) would require that the track owner have 
procedures in place to ensure adequate protection is immediately 
implemented where the continuous rail test inspection vehicle indicates 
a possible broken rail with rail separation. FRA intentionally does not 
specify what needs to be included in the procedures but expects the 
individual track owners to determine what is appropriate for their 
specific operations. At a minimum, these procedures would need to 
include specific communication channels, open at all times continuous 
rail testing is conducted and data is being analyzed, among the 
individuals who can take the necessary steps to immediately implement 
adequate protection. A track owner may not wait until the suspected 
broken rail with rail separation is field-verified. The visual 
indication from the analyst alone is sufficient.
    Proposed paragraph (e)(4) states that a suspected location is not 
considered an actual rail defect under Sec.  213.113(c) until it has 
been field-verified by a person qualified under Sec.  213.238. Thus, a 
track owner would not be required to implement the remedial actions 
listed in

[[Page 72539]]

the table contained in Sec.  213.113(c) until a suspected location is 
field-verified, or, as provided in proposed paragraph (e)(5), the 
required time period to conduct field verification has elapsed. 
Proposed paragraph (e)(4) goes on to state that once a suspected 
location is field-verified and determined to be a defect, the track 
owner must immediately perform all remedial actions required by Sec.  
213.113(a).
    Proposed paragraph (e)(5) would require that if a suspected 
location is not field-verified within the time required by proposed 
paragraph (e)(1) or (2), it must be immediately protected by applying 
the most restrictive remedial action outlined under the table contained 
in Sec.  213.113(c) for the suspected type and size of the suspected 
defect. The protection must cover a sufficient segment of track to 
assure coverage of the suspected location until field verification. 
Thus, if the size of a defect is not immediately clear, the protection 
must provide a safety margin and cover a larger segment of track to 
ensure the limits of the suspected defect are included in the 
protection.
    Proposed paragraph (f) would require that each suspect location be 
recorded with repeatable accuracy that allows for the location to be 
accurately located for subsequent field verification and remedial 
action. As the continuous testing process allows track owners to 
conduct field verifications well after the inspection equipment 
traverses a track segment, it is critical that each suspect location be 
accurately identified. A cornerstone of the entire process is that each 
suspect location is recorded with repeatable accuracy such that true 
and valid field verifications may be conducted. This can be 
accomplished through a variety or combination of methods, including use 
of GPS and measuring from known reference points. When GPS is used, 
procedures must be adopted that allow verifiers to be able to 
accurately find those suspect locations in areas where the signals for 
GPS are compromised or otherwise rendered unreliable, such as in 
tunnels, cut sections, or near buildings. When determining the 
appropriate procedures to follow, track owners should be particularly 
mindful of scenarios in which GPS is unreliable and few track features 
exist, such as can result with some rail that is rolled in weld-free 
segments that exceed one-tenth of a mile in length.
    Proposed paragraph (g) would require that track owners utilizing 
continuous rail testing submit an annual report to the FRA Associate 
Administrator for Railroad Safety/Chief Safety Officer no later than 45 
days following the end of each calendar year. This would apply only to 
track owners that have conducted continuous rail testing within the 
previous calendar year. Continuous testing programs have been trialed 
through temporary waivers granted to several railroads throughout the 
country; however, it is important to continue monitoring the overall 
impacts and efficacy of the process. As proposed, only railroads 
choosing to conduct continuous rail testing would be required to submit 
an annual report. This proposed reporting requirement is designed to 
provide sufficient data to enable a comparison of the results and 
effectiveness of continuous rail testing, as compared to the results 
and effectiveness of inspections by railroads who do not use continuous 
rail testing. The annual report will also allow FRA to monitor the 
effectiveness of individual railroads' specific continuous testing 
processes and programs, and compare results on a micro level for 
specific railroads. Furthermore, as innovation and technology evolve, 
it is critical to the success of the safety improvement process to 
collect and analyze this data for positive trend exploration.
    FRA will utilize the data provided in each railroad's annual report 
to match service failure rates with testing frequencies to correlate 
the impact of increased testing frequencies and the run over run 
comparison data to the accident rate. This will help ensure that the 
anticipated safety improvements resulting from the proposed 
modifications are realized. In addition, FRA intends to analyze and 
share the data with railroads to inform continuous process improvement, 
as done during the lengthy waiver history for continuous rail testing. 
Finally, the information should also serve as a valuable input to FRA's 
ongoing research on potential commonalities in rail geometry and rail 
defect growth patterns, to aid the industry in its continuous effort to 
mitigate the risk of track caused derailments.
    The annual report must be in a reasonably usable format, or its 
native electronic format, and contain at least all the information 
required by proposed paragraphs (g)(1) through (10) for each track 
segment requiring internal rail inspection under either Sec.  213.237 
or Sec.  213.339. Specifically, the submission must include the track 
owner's name (g)(1); the name of the railroad division and subdivision 
(g)(2); the segment identifier, milepost limits, and length of each 
segment (g)(3); the track number (g)(4); the class of track (g)(5); the 
annual million gross tons over that segment of track (g)(6); the total 
number of internal rail tests conducted over each track (g)(7); the 
type of internal rail test conducted on the segment, whether continuous 
rail test or stop-and-verify (g)(8); and the total number of defects 
identified over each track segment (g)(9), which would include only the 
defects that have been field-verified and determined to be actual 
defects. Proposed paragraph (g)(10) would also require the total number 
of service failures on each track segment.
    This information would be necessary for FRA to ensure safe 
operations and monitor the effectiveness of continuous rail testing and 
the requirements of this regulation as proposed. For FRA to fulfill its 
responsibilities to oversee railroad safety and the implementation of 
continuous testing, the agency must receive sufficient data to 
effectively perform its functions, while not placing undue burden on 
the industry. Accordingly, the proposed annual reporting requirements 
are intended to provide a high-level review for FRA to ensure that the 
continuous testing process would be consistently carried out in a 
proper manner.

Section 213.241 Inspection Records

    Section 213.241 provides that track owners keep a record of each 
inspection required to be performed under part 213, subpart F. 
Paragraph (b) of this section requires that each record of inspection 
under certain sections include specific information, be prepared on the 
day the inspection is made, and be signed by the person making the 
inspection. FRA proposes revising paragraph (b) by adding Sec.  213.137 
to the list of sections that require inspections for which records must 
comply with the requirements of paragraph (b). This addition is 
necessitated by the proposed revision to Sec.  213.137, specifically 
the incorporation of the waiver allowing the use of FBFs. One of the 
requirements for the use of FBFs under proposed Sec.  213.137(e)(3) is 
that they must be inspected at specific intervals. Records of those 
inspections must be kept and comply with Sec.  213.241(b).
    FRA proposes adding the phrase ``or otherwise certified'' after 
``signed'' in paragraph (b), and thus require that records be ``signed 
or otherwise certified by the person making the inspection.'' This is 
meant to clarify that a record does not have to be physically signed by 
the person making the inspection. The track owner can choose to use 
other methods to allow an inspector to certify an inspection record, 
provided that the method accurately and securely identifies the person 
making the inspection. Third, FRA proposes to add

[[Page 72540]]

three elements to the list of information that must be included in an 
inspection record. Specifically, FRA proposes that the record must 
include the author of the record, the type of track inspected, and the 
location of the inspection. FRA believes this information is already 
included in most, if not all, of the inspection records currently 
produced by the railroad industry. The proposal is therefore intended 
to emphasize the importance of this information and should have little, 
if any, impact on recordkeeping practices. The remaining edits to 
paragraph (b) are simply technical edits that have no effect on the 
intent of the paragraph. Specifically, FRA proposes changing ``owner'' 
to ``track owner'' at the beginning of the last two sentences. FRA also 
proposes removing ``either'' before the word ``maintained'' in the last 
sentence and changing ``10 days notice'' to ``10 days' notice.''
    FRA proposes redesignating current paragraphs (f) and (g) as 
paragraphs (i) and (j), respectively, and revising them, and adding new 
paragraphs (f), (g), and (h). Proposed paragraph (f) would list the 
recordkeeping requirements for continuous testing performed under 
proposed Sec.  213.240. These are similar to the current recordkeeping 
requirements for internal rail inspections conducted under Sec.  
213.237. Proposed paragraph (f)(1) would require the track owner's 
continuous rail testing records include all information required under 
proposed Sec.  213.240(e). Broadly, this would require the track owner 
to produce a report containing a systematic listing of all suspected 
locations, and is explained in greater detail above. Proposed paragraph 
(f)(2) would require that the records state whether the test is being 
conducted to satisfy the requirements for an internal rail inspection 
under Sec.  213.237. As discussed in more detail above, this is 
necessary information because it is relevant to whether the track owner 
must comply with the field verification time limits in proposed Sec.  
213.240(e). Proposed paragraph (f)(3) would require that the continuous 
rail testing records include the date and time of the beginning and end 
of each continuous test run, as well as the date and time each suspect 
location was identified and field-verified. Proposed paragraph (f)(4) 
would require that the continuous testing records include the 
determination made for each suspect location after field verification. 
This must include, at a minimum, the location and type of defect, the 
size of the defect, and the initial remedial action taken, if required, 
and the date thereof. Finally, proposed paragraph (f)(5) would require 
that these records be kept for two years from the date of the 
inspection, or one year after initial remedial action, whichever is 
later.
    Proposed paragraph (g) is similar to existing paragraph (e). It 
would require any track owner that elects to conduct continuous testing 
under proposed Sec.  213.240 to maintain records sufficient for 
monitoring and determining compliance with all applicable regulations 
and make those records available to FRA during regular business hours 
following reasonable notice. For example, the track owner must keep 
sufficient records of procedures enacted to comply with proposed Sec.  
213.240(b) as well qualification procedures under Sec.  213.238. The 
meaning of the term ``reasonable notice'' would depend on the specific 
facts of each situation (e.g., time of day, day of the week, number of 
records requested, etc.).
    Proposed paragraph (h) states that track inspection records, 
meaning each inspection record created under Sec.  213.241, shall be 
available to persons who performed the inspections and to persons 
performing subsequent inspections of the track segment. This is vitally 
important to ensure the quality and effectiveness of track inspections, 
and FRA believes that in most cases this is already being done, as it 
is required, at least for electronic inspection records, under existing 
Sec.  213.241(g)(7). A person performing a subsequent inspection must 
have an understanding of the track condition during previous 
inspections to effectively recognize significant changes in the track 
condition as well as ensure that previously-noted defects are 
adequately protected, have been adequately remediated, or have not 
degraded to a degree that requires further action.
    FRA proposes redesignating existing paragraph (f) as paragraph (i) 
and revising it by adding to the end of the paragraph ``during regular 
business hours following reasonable notice.'' The meaning of the term 
``reasonable notice'' would depend on the specific facts of each 
situation (e.g., time of day, day of the week, number of records 
requested, etc.).
    FRA proposes redesignating existing paragraph (g) as paragraph (j) 
and revising it. FRA first proposes to reword the introductory language 
of the paragraph (g) to make it clearer. The new language allows a 
track owner to create, retain, transmit, store, and retrieve records by 
electronic means for purposes of complying with this section. The 
proposed change to this language is not meant to affect the meaning or 
intent of this paragraph.
    Further, in redesignating paragraph (g) as paragraph (j), FRA would 
remove existing paragraphs (g)(5) through (7). Existing paragraph 
(g)(1) would be redesignated as paragraph (j)(3), existing paragraph 
(g)(2) would be redesignated as paragraph (j)(5), and existing 
paragraph (g)(3) would be redesignated as paragraph (j)(4). Proposed 
new paragraphs (j)(1) and (2) would be added. FRA believes the proposal 
would preserve the intent of existing paragraph (g), ensuring the 
integrity of electronic records, while increasing clarity and allowing 
track owners additional flexibility without negatively impacting 
safety.
    Proposed paragraph (j)(1) would require that the system used to 
generate the electronic records meet all the requirements and include 
all the information required under subpart F. Proposed paragraph (j)(2) 
would require that the track owner monitor its electronic records 
database to ensure record accuracy. FRA would intentionally leave it up 
to the track owner to determine the best way to effectively monitor, 
protect, and maintain the integrity and accuracy of its records 
database. FRA proposes that existing paragraph (g)(1) be redesignated 
as paragraph (j)(3) and revised to require that the electronic system 
be designed to uniquely identify the author of each record and prohibit 
two persons from having the same electronic identity. This is a 
simplified rephrasing of the requirements of existing paragraph (g)(1).
    FRA proposes that existing paragraph (g)(3) be redesignated as 
paragraph (j)(4) and slightly revised. Proposed paragraph (j)(4) would 
require that the electronic system ensures each record cannot be 
modified or replaced in the system once the record is completed. The 
one meaningful change is that proposed paragraph (j)(4) would prohibit 
modification once the record is completed while existing paragraph 
(g)(3) prohibits modification once the record is transmitted and 
stored. FRA recognizes that there are times when an inspection record 
may include information that cannot be entered until a later date, such 
as the date of final repair. Proposed paragraph (j)(4) would therefore 
allow for modification of a record, provided the modification is made 
by the original author of the record or the author of the modification 
is identified in the record, after the record has been transmitted but 
before the record has been fully completed. This would not permit 
someone other than the author of the record to modify existing 
information at a later date, such

[[Page 72541]]

as track measurements or listings of reported defects.
    FRA proposes that existing paragraph (g)(2) be redesignated as 
paragraph (j)(5) and revised to require that electronic storage of 
records be initiated by the person making the inspection within 72 
hours following completion of the inspection. Existing paragraph (g)(2) 
requires that electronic storage be initiated within 24 hours of 
completion of the inspection. FRA believes that giving track owners an 
additional 48 hours to upload inspection records would provide needed 
flexibility without negatively impacting safety. For example, where an 
inspector does not have internet connection or where their computer 
fails, it may take more than 24 hours to upload the inspection report. 
The new 72-hour requirement would also take into account the 
possibility of technical issues occurring late on a Friday that cannot 
be remedied until the following Monday, due to limited availability of 
technical support personnel.
    FRA proposes removing existing paragraph (g)(5), which requires 
that the electronic system provide for maintenance of the inspection 
records without corruption or loss of data. FRA believes that proposed 
paragraph (j)(2), which would require that the track owner monitor the 
database to ensure record accuracy, would make existing paragraph 
(g)(5) redundant. FRA also proposes removing existing paragraph (g)(6), 
which generally requires that track owners make paper copies of 
electronic records available to FRA. FRA believes that this would also 
be redundant given that existing paragraph (f) already requires this, 
and would continue to require as redesignated paragraph (i). Finally, 
FRA proposes removing existing paragraph (g)(7), which requires that 
electronic track inspection records be kept available to persons who 
performed the inspections and to persons performing subsequent 
inspections. FRA believes this would be made redundant with the 
addition of proposed paragraph (h), which would require the same for 
all records.

Section 213.305 Designation of Qualified Individuals; General 
Qualifications

    Proposed revisions are intended to mirror the relevant proposed 
revisions to Sec.  213.7, discussed above. Section 213.305 addresses 
the qualification of individuals responsible for the maintenance and 
inspection of Class 6 and above track. Currently, paragraphs (a)(3), 
(b)(3), and (c)(4) each require that a qualified person ``[b]e 
authorized in writing'' or possess ``[w]ritten authorization from the 
track owner.'' Although FRA believes that the term ``written'' and ``in 
writing'' can be interpreted to encompass both physical hardcopies of 
an authorization as well as electronic versions, to avoid any possible 
confusion, FRA proposes to remove the terms ``written'' and ``in 
writing.'' These changes would make clear that the required 
authorizations under these paragraphs may be recorded and conveyed 
either in hardcopy or electronic form.
    FRA proposes to revise and reorganize paragraph (e) to clarify the 
type of information track owners must include in their records of 
designations made under paragraphs (a) through (d). First, for the 
reasons stated above, the term ``written'' would be removed. Records of 
designations made under Sec.  213.305 can be either in physical or 
electronic form. FRA proposes to add new paragraph (e)(2) to require 
records of designations include the date each designation was made. The 
date of an individual's designation is relevant and important 
information both to the track owner and to FRA, and FRA believes most, 
if not all, track owners already include this in their designation 
records. To incorporate this proposed revision, existing paragraph 
(e)(2) would be redesignated as paragraph (e)(3).
    FRA also proposes to remove the first sentence of existing 
paragraph (e)(3), because it is redundant when considering the 
requirements of Sec.  213.369. The second sentence of existing 
paragraph (e)(3) would be redesignated as paragraph (f) and revised. As 
under the existing regulation, a track owner would be required to make 
the records kept under paragraph (e) available for inspection and 
copying by FRA. FRA proposes rephrasing the sentence to require that 
FRA make its request for records during normal business hours and give 
the track owner ``reasonable notice'' before requiring production. The 
meaning of the term ``reasonable notice'' would depend on the specific 
facts of each situation (e.g., time of day, day of the week, number of 
records requested, etc.).

Section 213.365 Visual Track Inspections

    Proposed revisions are intended to mirror the relevant proposed 
revisions to Sec.  213.233, discussed above. FRA first proposes to 
revise the heading for Sec.  213.365 by adding the word ``track'' after 
``visual'' so that the heading reads ``Visual track inspections.'' This 
change is not meant to affect the intent of the section. Because other 
sections in part 213 cover different types of inspections (e.g., 
automated inspections, inspections of rail, etc.), the proposed heading 
change is simply intended to clarify that this section deals 
specifically with visual track inspections. This proposal is also 
consistent with the current heading for the corresponding non-high-
speed track section, Sec.  213.233, ``Track inspections.'' As discussed 
above, FRA proposes to revise the heading for Sec.  213.233 so that the 
headings are the same for both Sec. Sec.  213.233 and 213.365.
    FRA also proposes revising paragraph (b) to change the terms 
``riding over'' and ``passing over'' to ``traversing,'' and ``is 
riding'' and ``are riding'' to ``traverses'' and ``traverse.'' 
Additionally, FRA proposes changing ``is actually'' to ``must be'' in 
paragraph (b)(3). These changes are not meant to affect the meaning of 
Sec.  213.365, but instead are made for grammatical consistency.
    FRA proposes removing the last sentence of paragraph (b)(3), also 
known as the high-density commuter line exception. It is FRA's 
understanding that no railroads currently utilize this exception. 
Paragraph (b)(3) requires, among other things, that each main track be 
traversed by a vehicle or inspector on foot at least once every two 
weeks, and every siding at least every month. The high-density commuter 
line exception applies where track time does not permit on-track 
vehicle inspection and where track centers are 15 feet or less apart 
and exempts those operations from the inspection method requirements of 
paragraph (b)(3). FRA's proposal to remove this exception is consistent 
with NTSB recommendation R-14-11, section 11409 of the FAST Act, and 
the proposal to remove the counterpart to this section in Sec.  
213.233(b)(3), as discussed above in the section-by-section analysis 
for Sec.  213.233(b)(3) and in section IV.B.i of this NPRM.
    FRA proposes two revisions to paragraph (c). First, FRA proposes to 
add the word ``visual'' before ``track inspection'' in the introductory 
text. This would simply be to make paragraph (c) consistent with the 
heading for Sec.  213.365 and would have no effect on the meaning of 
paragraph (c). Second, FRA proposes adding footnote 1 after the word 
``weekly'' in the table in paragraph (c). The footnote defines the term 
``weekly'' to be any seven-day period beginning on Sunday and ending on 
Saturday. This definition is consistent with FRA's past interpretation 
and enforcement practice, as well as FRA's public guidance included in 
Volume II, Chapter 1, of the Track and Rail and Infrastructure 
Integrity Compliance Manual, March 1,

[[Page 72542]]

2018, available on FRA's public eLibrary (https://www.fra.dot.gov/eLib/Find).
    FRA also proposes to revise paragraph (d). Specifically, FRA would 
add the phrase ``the Sec.  213.305 qualified'' at the beginning of the 
paragraph to clarify that ``the person'' making the inspection that the 
existing rule text refers to is the qualified track inspector 
designated under Sec.  213.305. Additionally, FRA proposes adding a 
sentence at the end of paragraph (d) stating that any subsequent 
movements to facilitate repairs on track that is out of service must be 
authorized by a Sec.  213.305 qualified person. This section is silent 
as to whether or when movement over track that is out of service is 
permissible. FRA recognizes that certain movements are necessary to 
facilitate repairs and does not interpret or enforce the current 
regulatory language to bar track owners from moving equipment and 
materials to do so on track that is out of service. The proposed 
revision is meant to embody that practice and interpretation into the 
regulation and prevent possible confusion.

Section 213.369 Inspection Records

    Proposed revisions are intended to mirror the relevant proposed 
revisions to Sec.  213.241, discussed above. FRA proposes adding the 
phrase ``or otherwise certified'' after ``signed'' in paragraph (b), 
and thus require that records be ``signed or otherwise certified by the 
person making the inspection.'' This is meant to clarify that a record 
does not have to be physically signed by the person making the 
inspection. The track owner can choose to use other methods to allow an 
inspector to certify an inspection record, provided that the method 
accurately and securely signifies the identity of the person making the 
inspection. Next, FRA proposes to add three elements to the list of 
information that must be included in an inspection record. 
Specifically, FRA proposes that the record must include the author of 
the record, the type of track inspected, and the location of the 
inspection. FRA believe this information is already included in most, 
if not all, of the inspection records currently produced by the 
railroad industry. The proposal is therefore intended to emphasize the 
importance of this information and should have little, if any, impact 
on recordkeeping practice. The remaining edits to paragraph (b) are 
simply technical edits that have no effect on the intent or effect of 
the paragraph. Specifically, FRA proposes changing ``owner'' to ``track 
owner'' at the beginning of the last two sentences. FRA also proposes 
removing ``either'' before the word ``maintained'' in the last sentence 
and changing ``10 days notice'' to ``10 days' notice.''
    FRA proposes redesignating paragraphs (d), (e), and (f) as 
paragraphs (g), (h), and (i), respectively, and revising them, and 
adding new paragraphs (d), (e), and (f). Proposed paragraph (d) would 
list the recordkeeping requirements for continuous testing performed 
under proposed Sec.  213.240. These are similar to the current 
recordkeeping requirements for internal rail inspections conducted 
under Sec.  213.339. Proposed paragraph (d)(1) would require the track 
owner's continuous rail testing records include all information 
required under proposed Sec.  213.240(e). Broadly, this would require 
the track owner to produce a report containing a systematic listing of 
all suspected locations, and is explained in greater detail above. 
Proposed paragraph (d)(2) would require that the records state whether 
the test is being conducted to satisfy the requirements for an internal 
rail inspection under Sec.  213.339. As discussed in more detail above, 
this is necessary information because it is relevant to whether the 
track owner must comply with the field verification time limits in 
proposed Sec.  213.240(e). Proposed paragraph (d)(3) would require that 
the continuous rail testing records include the date and time for the 
beginning and end of each continuous test run, as well as the date and 
time each suspect location was identified and field-verified. Proposed 
paragraph (d)(4) would require that the continuous testing records 
include the determination made for each suspect location after field 
verification. This must include, at a minimum, the location and type of 
defect, the size of the defect, and the initial remedial action taken, 
if required, and the date thereof. Finally, proposed paragraph (d)(5) 
would require that these records be kept for two years from the date of 
the inspection, or one year after initial remedial action, whichever is 
later.
    Proposed paragraph (e) would require any track owner that elects to 
conduct continuous testing under proposed Sec.  213.240 to maintain 
records sufficient for monitoring and determining compliance with all 
applicable regulations and make those records available to FRA during 
regular business hours following reasonable notice. For example, the 
track owner must keep sufficient records of procedures developed to 
comply with proposed Sec.  213.240(b) as well qualification procedures 
under Sec.  213.238. The meaning of the term ``reasonable notice'' 
would depend on the specific facts of each situation (e.g., time of 
day, day of the week, number of records requested, etc.).
    Proposed paragraph (f) states that track inspection records, 
meaning each inspection record created under Sec.  213.369, shall be 
available to persons who performed the inspections and to persons 
performing subsequent inspections of the track segment. This is vitally 
important to ensure the quality and effectiveness of track inspections, 
and FRA believes that in most cases this is already being done, as it 
is required, at least for electronic inspection records, under existing 
Sec.  213.369(e)(7). A person performing a subsequent inspection must 
have an understanding of the track condition during previous 
inspections to effectively recognize significant changes in the track 
condition as well as ensure that previously noted defects are 
adequately protected, have been adequately remediated, or have not 
degraded to a degree that requires further action.
    As noted above, FRA proposes redesignating existing paragraph (d) 
as paragraph (g), and revising it, principally by adding to the end of 
the paragraph ``upon request during regular business hours following 
reasonable notice.'' The meaning of the term ``reasonable notice'' 
would depend on the specific facts of each situation (e.g., time of 
day, day of the week, number of records requested, etc.).
    FRA also proposes redesignating existing paragraph (e) as paragraph 
(h), and revising it. FRA first proposes to reword the introductory 
language of existing paragraph (e) to make it clearer. The new language 
would allow a track owner to create, retain, transmit, store, and 
retrieve records by electronic means for purposes of complying with 
this section. The proposed change to this language is not meant to 
affect the meaning or intent of this paragraph.
    Further, in redesignating paragraph (e) as paragraph (h), FRA would 
remove existing paragraphs (e)(5) through (7). Existing paragraph 
(e)(1) would be redesignated as paragraph (h)(3), existing paragraph 
(e)(2) would be redesignated as paragraph (h)(5), and existing 
paragraph (e)(3) would be redesignated as paragraph (h)(4). Proposed 
new paragraphs (e)(1) and (2) would be added. FRA believes the proposal 
would preserve the intent of existing paragraph (e), ensuring the 
integrity of electronic records, while increasing clarity and allowing 
track owners additional flexibility without negatively impact safety.
    Proposed paragraph (h)(1) would require that the system used to 
generate the electronic records meet all the requirements and include 
all the

[[Page 72543]]

information required under subpart G. Proposed paragraph (h)(2) would 
require that the track owner monitor its electronic records database to 
ensure record accuracy. FRA would intentionally leave it up to the 
track owner to determine the best way to effectively monitor, protect, 
and maintain the integrity and accuracy of its records database. FRA 
proposes that existing paragraph (e)(1) be redesignated as paragraph 
(h)(3) and revised to require that the electronic system be designed to 
uniquely identify the author of each record and prohibit two persons 
from having the same electronic identity. This is a simplified 
rephrasing of the requirements of existing paragraph (e)(1).
    FRA proposes that existing paragraph (e)(3) be redesignated as 
paragraph (h)(4) and slightly revised. Proposed paragraph (h)(4) would 
require that the electronic system ensures each record cannot be 
modified or replaced in the system once the record is completed. The 
one meaningful change is that proposed paragraph (h)(4) would prohibit 
modification once the record is completed; instead, existing paragraph 
(e)(3) prohibits modification once the record is transmitted and 
stored. FRA recognizes that there are times when an inspection record 
may include information that cannot be entered until a later date, such 
as the date of final repair. Proposed paragraph (h)(4) would therefore 
allow for modification of a record, provided the modification is made 
by the original author of the record or the author of the modification 
is identified in the record, after the record has been transmitted but 
before the record has been fully completed. This would not permit 
someone other than the author of the record to modify existing 
information at a later date, such as track measurements or listings of 
reported defects.
    FRA proposes that existing paragraph (e)(2) be redesignated as 
paragraph (h)(5) and revised to require that electronic storage of 
records be initiated by the person making the inspection within 72 
hours following completion of the inspection. Existing paragraph (e)(2) 
requires that electronic storage be initiated within 24 hours of 
completion of the inspection. FRA believes that giving track owners an 
additional 48 hours to upload inspection records would provide needed 
flexibility without negatively impacting safety. For example, where an 
inspector does not have internet connection or experiences computer 
failure, it may take more than 24 hours to upload the inspection 
report. The new 72-hour requirement would also take into account the 
possibility of technical issues occurring late on a Friday that cannot 
be remedied until the following Monday, due to limited availability of 
technical support personnel.
    FRA proposes removing existing paragraph (e)(5), which requires 
that the electronic system provide for maintenance of the inspection 
records without corruption or loss of data. FRA believes that proposed 
paragraph (h)(2), which would require that the track owner monitor the 
database to ensure record accuracy, would make existing paragraph 
(e)(5) redundant. FRA also proposes removing existing paragraph (e)(6), 
which generally requires that track owners make paper copies of 
electronic records available to FRA. FRA believes that this would also 
be redundant given that existing paragraph (d) already requires this, 
and would continue to require as redesignated paragraph (g). Finally, 
FRA proposes removing existing paragraph (e)(7), which requires that 
electronic track inspection records be kept available to persons who 
performed the inspections and to persons performing subsequent 
inspections. FRA believes this would be made redundant with the 
addition of proposed paragraph (f), which would require the same for 
all records.
    FRA is redesignating paragraph (f) as paragraph (i) and slightly 
revising it for punctuation; no substantive change is intended.

VI. Regulatory Impact and Notices

A. Executive Order 12866, and DOT Regulatory Policies and Procedures

    This proposed rule is a significant regulatory action within the 
meaning of Executive Order 12866 (E.O. 12866) and DOT policies and 
procedures. See DOT Order 2100.6, Policies and Procedures for 
Rulemaking (Dec. 20, 2018), available at https://cms.dot.gov/sites/dot.gov/files/docs/regulations/328561/dot-order-21006-rulemaking-process-signed-122018.pdf. Additionally, this proposed rule is 
considered an E.O. 13771 deregulatory action. Details on the estimated 
cost savings of this proposed rule can be found in the proposed rule's 
Regulatory Impact Analysis, which FRA has prepared and placed in the 
docket (docket number FRA-2018-0104). The analysis details estimated 
costs and cost savings the railroad track owners regulated by the rule 
are likely to see over a 10-year period.
    FRA proposes to revise its regulations governing the minimum safety 
requirements for railroad track. The proposed changes include: 
Permitting the inspection of rail using continuous rail testing; 
allowing the use of flange-bearing frogs in crossing diamonds; relaxing 
the guard check gage limits on heavy-point frogs used in Class 5 track; 
removing the high-density commuter line exception; and other 
miscellaneous revisions.
    The proposed revisions would benefit railroad track owners and the 
public by reducing unnecessary costs and incentivizing innovation, 
while not negatively affecting safety.
    The following table shows the net cost savings of this proposed 
rule, over the 10-year analysis.

                                          Net Cost Savings, in Millions
                                                 [2018 dollars]
----------------------------------------------------------------------------------------------------------------
                                                  Present  value  Present  value
                                                         7%              3%       Annualized  7%  Annualized  3%
----------------------------------------------------------------------------------------------------------------
Costs...........................................           $25.9           $31.4            $3.7            $3.7
Cost Savings....................................           148.7           180.3            21.2            21.1
                                                 ---------------------------------------------------------------
    Net Cost Savings............................           122.8           148.9            17.5            17.4
----------------------------------------------------------------------------------------------------------------

    The estimated 10-year net cost savings of the proposed rule would 
be $122.8 million (7%) and $148.9 million (3%). The annualized net cost 
savings would be $17.5 million (7%) and $17.4 million (3%).
    The additional flexibility of this proposed rule would result in 
cost savings for railroad track owners. Continuous rail testing would 
reduce overtime hours for maintenance-of-way employees. The flange-
bearing frog

[[Page 72544]]

changes would eliminate the required inspection time during the first 
week when compared to current conditions under the FRA waiver. The 
continuous testing, flange-bearing frog, and heavy-point frog changes 
would eliminate the need for and costs of applying for waivers to 
implement such a testing practice and track components. In fact, fewer 
slow orders would be needed with continuous testing, which would result 
in a significant cost savings.
    The table below presents the estimated cost savings associated with 
the proposed rule, over the 10-year analysis.

                                   Summary of Total Cost Savings, in Millions
----------------------------------------------------------------------------------------------------------------
                                                  Present  value  Present  value
                     Section                             7%              3%       Annualized  7%  Annualized  3%
----------------------------------------------------------------------------------------------------------------
Flange Bearing Frog Inspections.................          $0.191          $0.223          $0.027          $0.026
Frog Waiver Savings.............................           0.013           0.016           0.002           0.002
Continuous Testing Labor Cost Savings...........           7.086           8.590           1.009           1.007
Slow Orders.....................................         141.329         171.340          20.122          20.086
Continuous Testing Waiver Savings...............           0.130           0.154           0.012           0.010
                                                 ---------------------------------------------------------------
    Total.......................................         148.749         180.324          21.172          21.132
----------------------------------------------------------------------------------------------------------------

    The estimated 10-year total cost savings of the proposed rule would 
be $148.7 million (discounted at 7%) and $180.3 million (discounted at 
3%). The annualized cost savings would be $21.2 million (7%) and $21.1 
million (3%).
    If railroad track owners choose to take advantage of the cost 
savings from this proposed rule, they would incur additional labor 
costs associated with continuous rail testing. These costs are 
voluntary because track owners would only incur them if they choose to 
operate continuous rail testing vehicles. The table below presents the 
estimated costs, over the 10-year analysis.

                                       Summary of Total Costs, in Millions
----------------------------------------------------------------------------------------------------------------
                                                  Present  value  Present  value
                                                         7%              3%       Annualized  7%  Annualized  3%
----------------------------------------------------------------------------------------------------------------
Continuous Testing..............................           $25.9           $31.4            $3.7            $3.7
----------------------------------------------------------------------------------------------------------------

    The estimated 10-year costs of the proposed rule would be $25.9 
million (discounted at 7%) and $31.4 million (discounted at 3%). The 
annualized costs would be $3.7 million (at both 7% and 3%).
    The proposed rule would also encourage the use of continuous rail 
testing, which may reduce certain types of derailments. FRA does not 
have sufficient data to estimate the reduction in derailments. However, 
FRA expects the proposed rule to result in safety benefits from fewer 
injuries, fatalities, and property and track damage.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency 
review of proposed and final rules to assess their impacts on small 
entities. An agency must prepare an Initial Regulatory Flexibility 
Analysis (IRFA) unless it determines and certifies that a rule, if 
promulgated, would not have a significant economic impact on a 
substantial number of small entities. FRA has not determined whether 
this proposed rule would have a significant economic impact on a 
substantial number of small entities.
    Therefore, FRA prepared an IRFA which is included as an appendix to 
the accompanying Regulatory Impact Analysis and available in the docket 
for this rulemaking (FRA 2018-0104) to aid the public in commenting on 
the potential small business impacts of the requirements in this NPRM.

C. Paperwork Reduction Act

    The information collection requirements in this proposed 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:

----------------------------------------------------------------------------------------------------------------
                                                                                                   Total annual
         CFR section              Respondent      Total annual     Average time    Total annual     dollar cost
                                   universe        responses       per response    burden hours   equivalent \3\
----------------------------------------------------------------------------------------------------------------
213.4--Excepted track--        236 railroads..  15 notices.....  10 minutes.....               3            $219
 Notification to FRA about
 removal of excepted track.
213.5--Responsibility of       744 railroads..  10 written       1 hour.........              10             730
 track owners.                                   notices.
213.7--Designation of          728 railroads..  1,500 names....  10 minutes.....             250          18,250
 qualified persons to
 supervise certain renewals
 and inspect track--
 Designations: Names on list
 with written authorization.
213.17--Waivers..............  744 railroads..  6 petitions....  2 hours........              12             876
213.57--Curves, elevation and
 speed limitations:

[[Page 72545]]

 
    --Request to FRA for       744 railroads..  2 requests.....  8 hours........              16           1,168
     vehicle type approval.
    --Written Notification to  744 railroads..  2 notifications  2 hours........               4             292
     FRA prior to
     implementation of higher
     curving speeds.
    --Written consent of       744 railroads..  2 written        45 minutes.....               2             146
     track owners obtained by                    consents.
     railroad providing
     service over that track.
213.110--Gage restraint
 measurement systems (GRMS):
    --Implementing GRMS--      744 railroads..  5 notifications  45 minutes/4                  8             365
     notices & reports.                          + 1 tech. rpt.   hours.
    --GRMS vehicle output      744 railroads..  50 reports.....  5 minutes......               4             288
     reports.
    --GRMS vehicle exception   744 railroads..  50 reports.....  5 minutes......               4             288
     reports.
    --GRMS/PTLF--procedures    744 railroads..  1 proc. doc....  2 hours........               2             146
     for data integrity.
    --GRMS inspection records  744 railroads..  50 records.....  1 hour.........              50           3,650
213.118--Continuous welded
 rail (CWR); plan review and
 approval:
    --Revised plans w/         436 railroads..  8 plans........  4 hours........              32           2,336
     procedures for CWR.
    --Notification to FRA and  436 RRs/80,000   800              15 seconds.....               3             219
     RR employees of CWR plan   employees.       notifications.
     effective date.
    --Written submissions      744 railroads..  7 written        2 hours........              14           1,022
     after plan disapproval.                     submissions.
    --Final FRA disapproval    744 railroads..  7 amended plans  1 hour.........               7             511
     and plan amendment.
213.119--Continuous welded
 rail (CWR); plan contents:
    --Record keeping for       436 railroads..  60,000 records.  15 seconds.....             250          18,250
     special inspections.
    --Record keeping for CWR   436 railroads..  180,000 rcds...  2 minutes......           6,000         438,000
     rail joints.
    --Periodic records for     436 railroads..  480,000 rcds...  2 minutes......          16,000       1,168,000
     CWR rail adjustments.
213.137--New Requirements--
 Frogs:
    --Railroad documentation   744 railroads..  5 railroad       30 minutes.....               3             219
     of flange-bearing frogs                     documents.
     (FBFs) location,
     crossing angle, tonnage,
     speed, directions, and
     type of traffic.
    --Inspection of FBF        744 railroads..  240 inspection/  15 minutes.....              60           4,380
     crossing diamond                            records.
     installations and
     records.
    --RR preparation and       744 railroads..  7 manuals......  30 minutes.....               4             292
     distribution of insert
     to maintenance manuals
     for responsible
     personnel for the
     inspection and repair of
     FBF crossing diamonds.
213.143--New Requirements--    744 railroads..  10 HPF turnout   30 minutes.....               5             365
 Frog guard rails and guard                      records.
 faces; gage (FRA request
 from RR/track owner of
 record of the location and
 description of each turnout
 containing a heavy-point
 frog (HPF)).
213.237--Inspection of Rail:
    --Detailed request to FRA  10 railroads...  10 requests....  15 minutes.....               3             219
     to change designation of
     a rail inspection
     segment or establish a
     new segment.
    --Notification to FRA and  10 railroads...  50 notices +     15 minutes.....              43           3,139
     all affected employees                      120 notices/
     of designation's                            bulletins.
     effective date after
     FRA's approval/
     conditional approval.
    --Notice to FRA that       10 railroads...  12 notices.....  15 minutes.....               3             219
     service failure rate
     target in paragraph (a)
     of this section is not
     achieved.
    --Explanation to FRA as    10 railroads...  12 letters of    15 minutes.....               6             438
     to why performance                          explanation +
     target was not achieved                     12 plans.
     and provision to FRA of
     remedial action plan.
213.240--New Requirements--    12 railroads...  12 reports.....  4 hours........              48           3,504
 Continuous rail testing.
213.241--Inspection records..  744 railroads..  1,375,000        10 minutes.....         229,167      16,729,191
                                                 records.

[[Page 72546]]

 
213.303--Responsibility for    2 railroads....  1 notification.  1 hour.........               1              73
 compliance.
213.305--Designation of
 qualified individuals;
 general qualifications:
    --Designations (partially  2 railroads....  200 railroad     10 minutes.....              33           2,409
     qualified).                                 designations.
    --RR produced designation  2 railroads....  20 records.....  30 minutes.....              10             730
     record upon FRA request.
213.317--Waivers.............  2 railroads....  1 petition.....  2 hours........               2             146
213.329--Curves, elevation
 and speed limitations:
    --FRA approval of          2 railroads....  2 docs.........  8 hours........              16           1,168
     qualified vehicle types
     based on results of
     testing.
    --Written notification to  2 railroads....  2 notices......  2 hours........               4             292
     FRA 30 days prior to
     implementation of higher
     curving speeds.
    --Written Consent of       2 railroads....  2 written        45 minutes.....               2             146
     Other Affected Track                        consents.
     Owners by Railroad.
213.333--Automated Vehicle
 Insp. System--Measurements:
    --TGMS Output/Exception    7 railroads....  7 reports......  1 hour.........               7             504
     Reports.
213.341--Initial inspection
 of new rail & welds:
    --Inspection of field      2 railroads....  800 records....  2 minutes......              27           1,971
     welds.
213.343--Continuous welded
 rail (CWR):
    --Revised plans w/         2 railroads....  1 plan.........  4 hours........               4             292
     procedures for CWR.
    --Notification to FRA and  2 RRs/80,000     100              15 seconds.....             0.4              30
     RR employees of CWR plan   employees.       notifications.
     effective date.
    --Written submissions      2 railroads....  1 written        2 hours........               2             146
     after plan disapproval.                     submission.
    --Final FRA disapproval    2 railroads....  1 amended plan.  1 hour.........               1              73
     and plan amendment.
213.345--Vehicle
 qualification testing:
    --Vehicle qualification    2 railroads....  2 programs.....  120 hours......             240          17,520
     program for all vehicle
     types operating at track
     Class 6 speeds or above.
    --Previously qualified     2 railroads....  2 programs.....  40 hours.......              80           5,840
     vehicle types
     qualification programs.
    --Written consent of       2 railroads....  2 written        8 hours........              16           1,760
     other affected track                        consents.
     owners by railroad.
213.369--Inspection Records:
    --Record of inspection of  2 railroads....  15,000 records.  1 minute.......             250          18,250
     track.
    --Internal defect          2 railroads....  50 records.....  5 minutes......               4             292
     inspections and remedial
     action taken.
                              ----------------------------------------------------------------------------------
        Total................  744 railroads..  2,114,200......  N/A............         252,712      18,448,364
----------------------------------------------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \3\ The dollar equivalent cost is derived from the 2018 
Association of American Railroads publication titled Railroad Facts 
(Employment and Annual Wages by Class) using the appropriate 
employee group to calculate the average hourly wage rate that 
includes 75 percent overhead charges.
---------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: Whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Ms. Hodan Wells, 
Information Clearance Officer, Federal Railroad Administration, at 202-
493-0440, or Ms. Kimberly Toone, Records Management Officer, Federal 
Railroad Administration, at 202-493-6139.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Ms. Hodan 
Wells or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New 
Jersey Avenue SE, 3rd Floor, Washington, DC 20590. Comments may also be 
submitted via email to Ms. Wells at [email protected], or to Ms. 
Toone at [email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.

[[Page 72547]]

    FRA is not authorized to 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 the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

D. Environmental Impact

    FRA has evaluated this proposed 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 proposed rule is not a major Federal 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. 
See 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 proposed rule that might trigger the need for a 
more detailed environmental review. As a result, FRA finds that this 
proposed rule is not a major Federal action significantly affecting the 
quality of the human environment.

E. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255 (Aug. 10, 
1999)), requires FRA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, the agency may not issue a regulation with 
federalism implications that imposes substantial direct compliance 
costs and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments 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 proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132. FRA has 
determined that this final rule has no federalism implications, other 
than the possible preemption of state laws under 49 U.S.C. 20106. 
Therefore, the consultation and funding requirements of Executive Order 
13132 do not apply, and preparation of a federalism summary impact 
statement for the proposed 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 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 one 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 proposed rule would not result in such an expenditure, and thus 
preparation of such a statement is not required.

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 (May 22, 2001). FRA evaluated this proposed rule in accordance 
with Executive Order 13211 and determined that this regulatory action 
is not a ``significant energy action'' within the meaning of the 
Executive Order.
    Executive Order 13783, ``Promoting Energy Independence and Economic 
Growth,'' requires Federal agencies to review regulations to determine 
whether they potentially burden the development or use of domestically 
produced energy resources, with particular attention to oil, natural 
gas, coal, and nuclear energy resources. See 82 FR 16093 (March 31, 
2017). FRA determined this proposed rule would not burden the 
development or use of domestically produced energy resources.

H. Privacy Act Statement

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. DOT posts these 
comments, without edit, to www.regulations.gov, as described in the 
system of records notice, DOT/ALL-14 FDMS, accessible through 
www.dot.gov/privacy. To facilitate comment tracking and response, we 
encourage commenters to provide their name, or the name of their 
organization; however, submission of names is completely optional. 
Whether or not commenters identify themselves, all timely comments will 
be fully considered. If you wish to provide comments containing 
proprietary or confidential information, please contact the agency for 
alternate submission instructions.

List of Subjects in 49 CFR Part 213

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

The Proposed Rule

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

PART 213--[AMENDED]

0
1. The authority citation for 49 CFR part 213 continues to read as 
follows:

    Authority: 49 U.S.C. 20102-20114 and 20142; Sec. 403, Div. A, 
Pub. L. 110-432, 122 Stat. 4885; 28 U.S.C. 2461, note; and 49 CFR 
1.89.

Subpart A--General

0
2. Amend Sec.  213.1 by revising paragraph (b) to read as follows:


Sec.  213.1  Scope of part.

* * * * *
    (b) Subparts A through F apply to track Classes 1 through 5. 
Subpart G and 213.2, 213.3, 213.15, and 213.240 apply to track over 
which trains are operated at speeds in excess of those permitted over 
Class 5 track.
0
3. Amend Sec.  213.5 by revising paragraph (a)(3) to read as follows:

[[Page 72548]]

Sec.  213.5  Responsibility for compliance.

    (a) * * *
    (3) Operate under authority of a person designated under Sec.  
213.7(a), subject to conditions set forth in this part. If the 
operation is on continuous welded rail (CWR) track, the person under 
whose authority operations are conducted must also be designated under 
Sec.  213.7(c).
* * * * *
0
4. Amend Sec.  213.7 by revising paragraphs (a)(1)(i) and (ii), (a)(3), 
(b)(3), (c)(4), and (e) and adding paragraph (f) to read as follows:


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

    (a) * * *
    (1) * * *
    (i) 1 year of experience in railroad track maintenance under 
traffic conditions; or
    (ii) A combination of experience in track maintenance and training 
from a course in track maintenance or from a college level educational 
program related to track maintenance.
* * * * *
    (3) Authorization from the track owner to prescribe remedial 
actions to correct or safely compensate for deviations from the 
requirements of this part.
    (b) * * *
    (3) Authorization from the track owner to prescribe remedial 
actions to correct or safely compensate for deviations from the 
requirements of this part, pending review by a qualified person 
designated under paragraph (a) of this section.
    (c) * * *
    (4) Authorization from the track owner to prescribe remedial 
actions to correct or safely compensate from deviation from the 
requirements in these procedures and successfully completed a recorded 
examination on those procedures as part of the qualification process.
* * * * *
    (e) With respect to designations under paragraph (a) through (d) of 
this section, each track owner shall maintain records of--
    (1) Each designation in effect;
    (2) The date each designation was made; and
    (3) The basis for each designation, including the method used to 
determine that the designated person is qualified.
    (f) Each track owner shall keep designation records required under 
paragraph (e) of this section readily available for inspection or 
copying by the Federal Railroad Administration during regular business 
hours, following reasonable notice.
0
5. Amend Sec.  213.9 by revising paragraph (b) to read as follows:


Sec.  213.9  Classes of track: operating speed limits.

* * * * *
    (b) If a segment of track does not meet all of the requirements of 
its intended class, it is reclassified to the next lowest class of 
track for which it does meet all of the requirements of this part. 
However, if the segment of track does not at least meet the 
requirements of Class 1 track, operations may continue at Class 1 
speeds for a period of not more than 30 days without bringing the track 
into compliance, under the authority of a person designated under Sec.  
213.7(a), after that person determines that operations may safely 
continue and subject to any limiting conditions specified by such 
person.
0
6. Revise Sec.  213.11 to read as follows:


Sec.  213.11  Restoration or renewal of track under traffic conditions.

    If during a period of restoration or renewal, track is under 
traffic conditions and does not meet all of the requirements prescribed 
in this part, the work on the track shall be under the continuous 
supervision of a person designated under Sec.  213.7(a), and (c) as 
applicable, and subject to any limiting conditions specified by such 
person. The operating speed cannot be more than the maximum allowable 
speed under Sec.  213.9 for the class of track concerned. The term 
``continuous supervision'' as used in this section means the physical 
presence of that person at the job site. However, since the work may be 
performed over a large area, it is not necessary that each phase of the 
work be done under the visual supervision of that person.

Subpart D--Track Structure

0
7. Amend Sec.  213.113 by revising the second sentence of paragraph (b) 
introductory text to read as follows:


Sec.  213.113  Defective rails.

* * * * *
    (b) * * * Except as provided in Sec.  213.240, 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--
* * * * *
0
8. Amend Sec.  213.137 by revising paragraph (a) and adding paragraph 
(e), to read as follows:


Sec.  213.137  Frogs.

    (a) Except as provided in paragraph (e) of this section, the 
flangeway depth measured from a plane across the wheel-bearing area of 
a frog on Class 1 track shall not be less than 1\3/8\ inches, or less 
than 1\1/2\ inches on Classes 2 through 5 track.
* * * * *
    (e) The flange depth requirements in paragraph (a) do not apply to 
a frog designed as a flange-bearing frog (FBF) used in a crossing 
diamond in Classes 2 through 5 track, provided that:
    (1) The crossing angle is greater than 20 degrees unless movable 
guard rails are used;
    (2) The track owner documents the location, crossing angle, 
tonnage, speed, direction, and type of traffic for each FBF used under 
this paragraph (e), and makes this information available to FRA upon 
request during regular business hours following reasonable notice; and
    (3) Maintenance manuals are prepared and made available to all 
personnel who are responsible for inspecting and repairing each FBF 
used under this paragraph (e). Each person conducting inspections of or 
repairing such an FBF must be properly trained.
0
9. Revise Sec.  213.143 to read as follows:


Sec.  213.143  Frog guard rails and guard faces; gage.

    The guard check and guard face gages in frogs shall be within the 
limits prescribed in the following table--

[[Page 72549]]



----------------------------------------------------------------------------------------------------------------
                                                                    Guard check gage         Guard face gage
                                                               -------------------------------------------------
                                                                  The distance between
                                                                the gage line of a frog
                                                                 to the guard line \1\     The distance between
                        Class of track                            of its guard rail or       guard lines,\1\
                                                                guarding face, measured    measured across the
                                                                  across the track at     track at right angles
                                                                  right angles to the      to the gage line,\2\
                                                                 gage line,\2\ may not    may not be more than--
                                                                     be less than--
----------------------------------------------------------------------------------------------------------------
Class 1 track.................................................               4'6\1/8\''               4'5\1/4\''
Class 2 track.................................................               4'6\1/4\''               4'5\1/8\''
Class 3 and 4 track...........................................               4'6\3/8\''               4'5\1/8\''
Class 5 track.................................................           \3\ 4'6\1/2\''                    4'5''
----------------------------------------------------------------------------------------------------------------
\1\ A line along that side of the flangeway which is nearer to the center of the track and at the same elevation
  as the gage line.
\2\ A line five-eighths of an inch below the top of the center line of the head of the running rail, or
  corresponding location of the tread portion of the track structure.
\3\ For any heavy-point frog (HPF) on class 5 track, the guard check gage may be less than 4'6\1/2\'' but not be
  less than 4'6\3/8\'', provided that:
(a) Each track owner maintains a record of the location and description of each turnout containing an HPF, and
  makes this information available to FRA upon request during regular business hours following reasonable
  notice;
(b) Each HPF and guard rails on both rails through the turnout are equipped with at least three serviceable
  through-gage plates with elastic rail fasteners and guard rail braces that permit adjustment of the guard
  check gage without removing spikes or other fasteners from the crossties;
(c) Each track owner provides all of its employees who are designated under Sec.   213.7 to inspect track or
  supervise restoration and renewal of track, or both, in areas that include turnouts with HPFs, with the proper
  maintenance manuals, instructions, and training; and
(d) Each HPF bears an identifying mark applied by either the track owner, railroad, or the frog manufacturer
  that identifies the frog as an HPF. The identifying mark to be applied or used shall be specified in the
  instructions to employees described in paragraph (d)(3) of this footnote.

Subpart F--Inspection

0
10. Amend Sec.  213.233 by
0
a. Revising the section heading and paragraph (b);
0
b. Revising the first row of the table in paragraph (c) and adding 
footnotes 1 and 2 to the table;
0
c. Revising paragraph (d).
    The revisions and addition to read as follows.


Sec.  213.233   Visual track inspections.

* * * * *
    (b) Each inspection shall be made on foot or by traversing the 
track in a vehicle at a speed that allows the person making the 
inspection to visually inspect the track structure for compliance with 
this part. However, mechanical, electrical, and other track inspection 
devices may be used to supplement visual inspection. If a vehicle is 
used for visual inspection, the speed of the vehicle may not be more 
than 5 m.p.h. when traversing track crossings and turnouts; otherwise, 
the inspection vehicle speed shall be at the sole discretion of the 
inspector, based on track conditions and inspection requirements. When 
traversing the track in a vehicle, the inspection will be subject to 
the following conditions--
    (1) One inspector in a vehicle may inspect up to two tracks at one 
time provided that the inspector's visibility remains unobstructed by 
any cause and that the second track is not centered more than 30 feet 
from the track the inspector traverses;
    (2) Two inspectors in one vehicle may inspect up to four tracks at 
a time provided that the inspectors' visibility remains unobstructed by 
any cause and that each track being inspected is centered within 39 
feet from the track the inspectors traverse;
    (3) Each main track must be traversed by the vehicle or inspected 
on foot at least once every two weeks, and each siding must be 
traversed by the vehicle or inspected on foot at least once every 
month; and
    (4) Track inspection records shall indicate which track(s) are 
traversed by the vehicle or inspected on foot as outlined in paragraph 
(b)(3) of this section.
    (c) * * *

----------------------------------------------------------------------------------------------------------------
             Class of track                      Type of track                     Required frequency
----------------------------------------------------------------------------------------------------------------
Excepted track, and Class 1, 2, and 3     Main track and sidings.....  Weekly \1\ with at least 3 calendar days'
 track.                                                                 interval between inspections, or before
                                                                        use, if the track is used less than once
                                                                        a week, or twice weekly with at least 1
                                                                        calendar day interval between
                                                                        inspections, if the track carries
                                                                        passenger trains \2\ or more than 10
                                                                        million gross tons of traffic during the
                                                                        preceding calendar year.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ An inspection week is defined as a seven (7) day period beginning on Sunday and ending on Saturday.
\2\ ``Twice weekly'' inspection requirement for track carrying regularly scheduled passenger trains does not
  apply where passengers train service consists solely of tourist, scenic, historic, or excursion operations as
  defined in 49 CFR 238.5 and the following conditions are met for an inspection week: (1) No passenger service
  is operated during the inspection week, or (2) if passenger service is operated during the inspection week:
  (i) The passenger service is operated only on a weekend or a 3-day extended weekend (weekend plus a contiguous
  Monday or Friday), and (ii) an inspection is conducted no more than 1 calendar day before a weekend or 3-day
  extended weekend on which passenger service is to be operated.

    (d) If the Sec.  213.7 qualified person making the inspection finds 
a deviation from the requirements of this part, the inspector shall 
immediately initiate remedial action. Any subsequent movements to 
facilitate repairs on track that is out of service must be authorized 
by a Sec.  213.7 qualified person.
* * * * *
0
11. Add Sec.  213.240 to read as follows:


Sec.  213.240   Continuous Rail Testing

    (a) Track owners may elect to use continuous rail testing to 
satisfy the requirements for conducting internal rail inspections under 
Sec.  213.237, or Sec.  213.339 where applicable. When a track owner 
utilizes the continuous rail test inspection process under the 
requirements of this section, the track owner is exempt from the 
requirements of Sec.  213.113(b); all other requirements of Sec.  
213.113 apply.
    (b) Track owners shall adopt the necessary procedures for 
conducting continuous testing. At a minimum, the procedures must 
conform to the requirements of this section and address:
    (1) How test data will be transmitted and analyzed;

[[Page 72550]]

    (2) How suspect locations will be identified for field 
verification;
    (3) How suspect locations will be categorized and prioritized 
according to their potential severity;
    (4) How suspect locations will be field-verified; and
    (5) How suspect locations will be designated following field 
verification.
    (c) The track owner must designate and record the type of rail test 
(continuous or stop-and-verify) to be conducted prior to commencing the 
test over a track segment and make those records available to FRA upon 
request during regular business hours following reasonable notice. If 
the type of rail test changes following commencement of the test, the 
change must be documented and include the time the test was started and 
when it was changed, the milepost where the test started and where it 
was changed, and the reason for the change. If the track owner intends 
to conduct a continuous test, at least 10 days prior to commencement of 
the test the track owner must designate and record whether the test is 
being conducted to satisfy the requirements for an internal rail 
inspection under Sec.  213.237, or Sec.  213.339 if applicable. This 
documentation must be provided to FRA upon request during regular 
business hours follow reasonable notice.
    (d)(1) Continuous rail test inspection vehicle operators must be 
qualified under Sec.  213.238;
    (2) Internal rail inspection data collected during continuous rail 
tests must be reviewed and interpreted by a person qualified to 
interpret the equipment responses; and
    (3) All suspect locations must be field-verified by a person 
qualified under Sec.  213.238.
    (e) At a minimum, the continuous rail test process must produce a 
report containing a systematic listing of all suspected locations that 
may contain any of the defects listed in the table in Sec.  213.113(c), 
identified so that a person qualified under Sec.  213.238 can 
accurately locate and field-verify each suspected defect.
    (1) Subject to the requirements of paragraphs (c)(2) and (3) of 
this section, if the continuous rail test inspection vehicle indicates 
a suspect location, field verification must be conducted within 72 
hours of the completion of the test run, or within 84 hours of the 
detection of the suspect location, whichever is earlier.
    (2) If the continuous rail test inspection vehicle indicates a 
suspect location containing a suspected defect that, if verified, 
requires remedial action A, A2, or B identified in the table contained 
in Sec.  213.113(c), the track owner must field-verify the suspect 
location no more than 24 hours after the completion of the test run, or 
36 hours from detection of the suspect location, whichever is earlier.
    (3) If the continuous rail test inspection vehicle indicates a 
broken rail with rail separation, the track owner must have procedures 
to ensure that adequate protection is immediately implemented.
    (4) A suspect location is not considered a defect under Sec.  
213.113(c) until it has been field-verified by a person qualified under 
Sec.  213.238. After the suspect location is field-verified and 
determined to be a defect, the track owner must immediately perform all 
required remedial actions prescribed in Sec.  213.113(a).
    (5) Any suspected location not field-verified within the time 
required under paragraphs (e)(1) and (2) of this section must be 
protected by applying the most restrictive remedial action under Sec.  
213.113(c) for the suspected type and size of the suspected defect. The 
remedial action must be applied over a sufficient segment of track to 
assure coverage of the suspected defect location until field-verified.
    (f) Each suspect location must be recorded with repeatable accuracy 
that allows for the location to be accurately located for subsequent 
verification and, as necessary, remedial action.
    (g) Within 45 days following the end of each calendar year, each 
track owner utilizing continuous rail testing must provide the FRA 
Associate Administrator for Railroad Safety/Chief Safety Officer with 
an annual report, in a reasonably usable format, or its native 
electronic format, containing at least the following information for 
each track segment requiring internal rail inspection under Sec.  
213.237, or Sec.  213.339 if applicable:
    (1) The track owner's name;
    (2) The railroad division and subdivision;
    (3) The segment identifier, milepost limits, and length of each 
segment;
    (4) The track number;
    (5) The class of track;
    (6) The annual million gross tons over the track;
    (7) The total number of internal rail tests conducted over each 
track;
    (8) The type of internal rail test conducted over each segment, 
either continuous rail test or stop-and-verify;
    (9) The total number of defects identified over each track segment; 
and
    (10) The total number of service failures on each track segment.
0
12. Amend Sec.  213.241 by revising paragraphs (b), (f), and (g), and 
adding paragraphs (h) through (j) to read as follows:


Sec.  213.241   Inspection records.

* * * * *
    (b) Each record of an inspection under Sec. Sec.  213.4, 213.119, 
213.137, 213.233, and 213.235 shall be prepared on the day the 
inspection is made and signed or otherwise certified by the person 
making the inspection. Records shall specify the author of record, the 
type of track inspected, date and location of inspection, location and 
nature of any deviation from the requirements of this part, and the 
remedial action taken by the person making the inspection. The track 
owner shall designate the location(s) where each original record shall 
be maintained for at least one year after the inspection covered by the 
record. The track owner shall also designate one location, within 100 
miles of each state in which it conducts operations, where copies of 
records that apply to those operations are maintained or can be viewed 
following 10 days' notice by the Federal Railroad Administration.
* * * * *
    (f) Records of continuous rail testing under Sec.  213.240 shall--
    (1) Include all information required under Sec.  213.240(e);
    (2) State whether the test is being conducted to satisfy the 
requirements for an internal rail inspection under Sec.  213.237;
    (3) List the date(s) and time(s) of the continuous rail test data 
collection, including the date and time of the start and end of the 
test run, and the date and time each suspect location was identified 
and field-verified;
    (4) Include the determination made after field verification of each 
suspect location, including the:
    (i) Location and type of defect found;
    (ii) Size of defect; and
    (iii) Initial remedial action taken, if required, and the date 
thereof; and
    (5) Be retained for at least two years after the inspection and for 
at least one year after initial remedial action is taken, whichever is 
later.
    (g) Track owners that elect to utilize continuous rail testing 
under Sec.  213.240 shall maintain records of all continuous rail 
testing operations sufficient for monitoring and determining compliance 
with all applicable regulations and shall make those records available 
to FRA during regular business hours following reasonable notice.
    (h) Track inspection records shall be kept available to persons who 
performed the inspections and to persons performing subsequent 
inspections of the track segment.

[[Page 72551]]

    (i) Each track owner required to keep inspection records under this 
section shall make those records available for inspection and copying 
by FRA upon request during regular business hours following reasonable 
notice.
    (j) For purposes of complying with the requirements of this 
section, a track owner may create, retain, transmit, store, and 
retrieve records by electronic means provided that--
    (1) The system used to generate the electronic record meets all 
requirements and contains the information required under this subpart;
    (2) The track owner monitors its electronic records database to 
ensure record accuracy;
    (3) The electronic system is designed to uniquely identify the 
author of the record. No two persons shall have the same electronic 
identity;
    (4) The electronic system ensures that each record cannot be 
modified in any way, or replaced, once the record is completed;
    (5) The electronic storage of each record shall be initiated by the 
person making the inspection within 72 hours following the completion 
of that inspection; and
    (6) Any amendment to a record shall be electronically stored apart 
from the record which it amends. Each amendment to a record shall be 
uniquely identified as to the person making the amendment.

Subpart G--Train Operations at Track Classes 6 and Higher

0
13. Amend Sec.  213.305 by revising paragraph (a)(3), paragraph (b)(3), 
(c)(4), and (e), and adding paragraph (f) to read as follows:


Sec.  213.305  Designation of qualified individuals; general 
qualifications.

* * * * *
    (a) * * *
    (3) Be authorized by the track owner to prescribe remedial actions 
to correct or safely compensate for deviations from the requirements of 
this subpart and successful completion of a recorded examination on 
this subpart as part of the qualification process.
    (b) * * *
    (3) Be authorized by the track owner to prescribe remedial actions 
to correct or safely compensate for deviations from the requirements in 
this subpart and successful completion of a recorded examination on 
this subpart as part of the qualification process.
    (c) * * *
    (4) Authorization from the track owner to prescribe remedial 
actions to correct or safely compensate for deviations from the 
requirements in those procedures and successful completion of a 
recorded examination on those procedures as part of the qualification 
process. The recorded examination may be written, or it may be a 
computer file with the results of an interactive training course.
* * * * *
    (e) With respect to designations under paragraphs (a), (b), (c) and 
(d) of this section, each track owner shall maintain records of:
    (1) Each designation in effect;
    (2) The date each designation was made; and
    (3) The basis for each designation, including but not limited to:
    (i) The exact nature of any training courses attended and the dates 
thereof; and
    (ii) The manner in which the track owner has determined a 
successful completion of that training course, including test scores or 
other qualifying results.
    (f) Each track owner shall keep these designation records readily 
available for inspection or copying by the Federal Railroad 
Administration during regular business hours, following reasonable 
notice.
0
14. Amend Sec.  213.365 by revising the section heading and paragraphs 
(b) through (d) to read as follow:


Sec.  213.365   Visual track inspections.

* * * * *
    (b) Each inspection shall be made on foot or by traversing the 
track in a vehicle at a speed that allows the person making the 
inspection to visually inspect the track structure for compliance with 
this part. However, mechanical, electrical, and other track inspection 
devices may be used to supplement visual inspection. If a vehicle is 
used for visual inspection, the speed of the vehicle may not be more 
than 5 m.p.h. when traversing track crossings and turnouts; otherwise, 
the inspection vehicle speed shall be at the sole discretion of the 
inspector, based on track conditions and inspection requirements. When 
traversing the track in a vehicle, the inspection will be subject to 
the following conditions--
    (1) One inspector in a vehicle may inspect up to two tracks at one 
time provided that the inspector's visibility remains unobstructed by 
any cause and that the second track is not centered more than 30 feet 
from the track upon which the inspector traverses;
    (2) Two inspectors in one vehicle may inspect up to four tracks at 
a time provided that the inspectors' visibility remains unobstructed by 
any cause and that each track being inspected is centered within 39 
feet from the track upon which the inspectors traverse;
    (3) Each main track must be traversed by a vehicle or inspected on 
foot at least once every two weeks, and each siding must be traversed 
by a vehicle or inspected on foot at least once every month; and
    (4) Track inspection records shall indicate which track(s) are 
traversed by the vehicle or inspected on foot as outlined in paragraph 
(b)(3) of this section.
    (c) Each visual track inspection shall be made in accordance with 
the following schedule--

------------------------------------------------------------------------
          Class of track                     Required frequency
------------------------------------------------------------------------
6, 7, and 8......................  Twice weekly \1\ with at least 2
                                    calendar days' interval between
                                    inspections.
9................................  Three times per week.
------------------------------------------------------------------------
\1\ An inspection week is defined as a seven (7) day period beginning on
  Sunday and ending on Saturday.

    (d) If the Sec.  213.305 qualified person making the inspection 
finds a deviation from the requirements of this part, the person shall 
immediately initiate remedial action. Any subsequent movements to 
facilitate repairs on track that is out of service must be authorized 
by a Sec.  213.305 qualified person.
* * * * *
0
15. Amend Sec.  213.369 by revising paragraphs (b) and (d) through (f), 
and adding paragraphs (g) through (i) to read as follows:


Sec.  213.369  Inspection records.

* * * * *
    (b) Except as provided in paragraph (e) of this section, each 
record of an inspection under Sec.  213.365 shall be prepared on the 
day the inspection is made and signed or otherwise certified by the 
person making the inspection. Records shall specify the author of 
record, the type of track inspected, date of inspection, location of 
inspection, nature of any deviation from the requirements of this part, 
and the remedial action taken by the person making the inspection. The 
track owner shall designate the location(s) where each original record 
shall be maintained for at least one year after the inspection covered 
by the record. The track owner shall also designate one location, 
within 100 miles of each state in which it conducts operations, where 
copies of records that apply to those operations are maintained or can 
be viewed following 10 days' notice by the Federal Railroad 
Administration.
* * * * *
    (d) Records of continuous rail testing under Sec.  213.240 shall--
    (1) Include all information required under Sec.  213.240(e);

[[Page 72552]]

    (2) State whether the test is being conducted to satisfy the 
requirements for an internal rail inspection under Sec.  213.339;
    (3) List the date(s) and time(s) of the continuous rail test data 
collection, including the date and time of the start and end of the 
test run, and the date and time each suspect location was identified 
and field-verified;
    (4) Include the determination made after field verification of each 
suspect location, including the:
    (i) Location and type of defect found;
    (ii) Size of defect; and
    (iii) Initial remedial action taken, if required, and the date 
thereof; and
    (5) Be retained for at least two years after the inspection and for 
at least one year after initial remedial action is taken, whichever is 
later.
    (e) Track owners that elect to utilize continuous rail testing 
under Sec.  213.240 shall maintain records of all continuous rail 
testing operations sufficient for monitoring and determining compliance 
with all applicable regulations and shall make those records available 
to FRA during regular business hours following reasonable notice.
    (f) Track inspection records shall be kept available to persons who 
perform the inspections and to persons performing subsequent 
inspections.
    (g) Each track owner required to keep inspection records under this 
section shall make those records available for inspection and copying 
by the Federal Railroad Administration upon request during regular 
business hours following reasonable notice.
    (h) For purposes of compliance with the requirements of this 
section, a track owner may create, retain, transmit, store, and 
retrieve records by electronic means provided that--
    (1) The system used to generate the electronic record meets all 
requirements and contains the information required under this subpart;
    (2) The track owner monitors its electronic records database to 
ensure record accuracy;
    (3) The electronic system be designed to uniquely identify the 
author of the record. No two persons shall have the same electronic 
identity;
    (4) The electronic system ensures that each record cannot be 
modified in any way, or replaced, once the record is completed;
    (5) The electronic storage of each record shall be initiated by the 
person making the inspection within 72 hours following the completion 
of that inspection; and
    (6) Any amendment to a record shall be electronically stored apart 
from the record which it amends. Each amendment to a record shall be 
uniquely identified as to the person making the amendment.
    (i) Each vehicle/track interaction safety record required under 
Sec.  213.333(g) and (m) shall be made available for inspection and 
copying by the FRA at the locations specified in paragraph (b) of this 
section.

    Issued in Washington, DC.
Ronald L. Batory,
Administrator.
[FR Doc. 2019-27748 Filed 12-30-19; 8:45 am]
 BILLING CODE 4910-06-P