Track Safety Standards; Miscellaneous Proposed Revisions

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

[Docket No. RST-90-1, Notice No. 5]

RIN 2130-AA75

Track Safety Standards; Miscellaneous Proposed Revisions

AGENCY: Federal Railroad Administration (FRA), Department of

Transportation (DOT).

ACTION: Notice of Proposed Rulemaking (NPRM).

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SUMMARY: FRA proposes to amend the Track Safety Standards in order to

update and enhance its track safety regulatory program. These proposed

amendments present additional regulatory requirements necessary to

address today's railroad operating environment including the

introduction of standards specifically addressing high speed train

operations. FRA proposes these changes to improve track safety and

provide the railroad industry with the flexibility needed to effect a

safer and more efficient use of resources. The proposed amendments

reflect consensus recommendations submitted to FRA by the Railroad

Safety Advisory Committee.

DATES: Written comments: Written comments must be received before

September 15, 1997. Comments received after that date will be

considered to the extent possible without incurring additional expense

or delay.

Public hearing: A public hearing will be held in Washington, D.C.

to allow interested parties the opportunity to comment on specific

issues addressed in the NPRM. FRA will announce at a later date in this

publication the date and location of the hearing.

ADDRESSES: Written comments: Comments should identify the docket number

and the notice number and should be submitted in triplicate to: Docket

Clerk, Office of Chief Counsel, Federal Railroad Administration, 400

Seventh Street, S.W., Mail Stop 10, Washington, D.C. 20590. Persons

desiring to be notified that their written comments have been received

by FRA should include with their comments a stamped, self-addressed

postcard. The Docket Clerk will indicate on the postcard the date on

which the comments were received and will return the card to the

addressee. Written comments will be available for examination during

regular business hours in Room 7051 of FRA headquarters at 1120 Vermont

Avenue, N.W., Washington, D.C.

Public hearing: The date and location of the public hearing will be

announced at a later date in this publication.

FOR FURTHER INFORMATION CONTACT: Allison H. MacDowell, Office of Safety

Enforcement, Federal Railroad Administration, 400 Seventh Street, S.W.,

Mail Stop 25, Washington, D.C. 20590 (telephone: 202-632-3344), or

Nancy Lummen Lewis, Office of Chief Counsel, Federal Railroad

Administration, 400 Seventh Street, S.W., Mail Stop 10, Washington,

D.C. 20590 (telephone: 202-632-3174).

SUPPLEMENTARY INFORMATION:

Introductory Statement

The text of the following proposed rule was recommended to FRA by

the agency's Rail Safety Advisory Committee (RSAC), a standing

committee composed of 48 representatives of the rail industry, rail

labor and other interested parties, as well as FRA. The committee is

tasked by the Federal Railroad Administrator (the Administrator) to

formulate and present to FRA recommendations for new regulations and

revisions of existing ones. The committee operates under a set of

procedures provided to and discussed with all its members when the RSAC

was first established.

In accordance with the procedures, the specific provisions of the

proposed rule were developed by the Track Working Group, a subcommittee

of the RSAC, which met periodically over a span of six months in 1996

to discuss track safety issues, developments in the industry, and

possible solutions to current safety challenges. Each provision

contained in the proposed rule received unanimous approval by the

members of the Track Working Group, which included approximately 30

representatives from railroads, rail labor, trade associations, state

government, track equipment manufacturers, and FRA. Such consensus is

required by RSAC procedures before a proposal can be presented to the

RSAC for consideration.

On October 18, 1996, all RSAC members were provided copies of the

Track Working Group's proposed rule for review. At a public meeting on

October 31, 1996, the Track Working Group presented its proposed rule

to the RSAC for approval to recommend it to the Administrator. After

discussion, the RSAC agreed, at the request of the Brotherhood of

Maintenance of Way Employes (BMWE), to defer the vote on whether to

recommend the proposed rule to the Administrator to provide that

organization additional time to inform its members. The RSAC conducted

a formal vote by mail on November 21, 1996. At that time,

representatives of many of the labor unions withdrew support of the

proposed rule and recommended that it be returned to the Track Working

Group for further discussion.

Despite the lack of support by many RSAC representatives of rail

labor, the number of votes cast in favor of recommending the proposed

rule to the Administrator exceeded the number necessary for a simple

majority. RSAC's procedures provide that where there is a majority vote

to recommend to the Administrator a rule presented to the RSAC with

full consensus of the working group that produced it, the RSAC will

recommend adoption of the rule by the Administrator. Following those

procedures, the RSAC formally recommended to the Administrator that FRA

issue the proposed rule as it was drafted. The following proposed rule

is the same rule text and preamble developed by the Track Working

Group. However, the regulatory evaluation for the proposed rule varies

somewhat from that submitted by the Track Working Group.

The cost/benefit evaluation of a proposed rule that enjoys

unanimous support by all of the affected parties may contain

assumptions which would not be appropriate for an analysis of a

proposed rule that receives less than unanimous support. For example,

unanimous support makes it easier to assume that costs are justified by

benefits where they may be difficult to quantify. The Track Working

Group submitted to the RSAC its proposed rule and cost/benefit analysis

as it was approved by the group with unanimous consensus. As noted

above, however, in the RSAC vote, members who represent almost entirely

one definable segment of the rail industry voted to recommend that the

proposed rule be returned to the working group for additional work.

While the Track Working Group's proposed rule received majority

consensus in the RSAC, its cost/benefit analysis was based on a premise

that it would receive unanimous consensus.

In acknowledgment of the change in assumptions, FRA has attempted

to incorporate additional data in the cost/benefit analysis that has

been placed in the docket. The analysis cannot answer some important

questions with the limited data now available. FRA requests that

parties who have access to this data submit them to FRA during the

comment period for this notice.

[[Page 36139]]

Specifically, FRA requests the following additional information:

What nonreportable accidents occur on excepted track? How

many are there by category and what do they cost? How much excepted

track does not comply with the proposed gage standard, and how much

will it cost to bring it into compliance?

What accidents have been caused by the use of personnel

not qualified under Sec. 213.7 to move trains over defective track? How

many are there by category and what do they cost? Have any accidents

been caused by qualified personnel who have not received

requalification training? How many are there by category and what do

they cost?

What accidents have been caused by torch-cut bolt holes in

Class 2 track? How many are there by category and what do they cost?

What accidents have been caused by torch-cut rails or

joint bars reconfigured by torch cutting? How many are there by

category and what do they cost?

How many miles of track, by class would not comply with

the proposed crosstie standard, and how much will it cost to bring them

into compliance?

What accidents have been caused by failure to operate a

switch during inspections? How many are there by category and what do

they cost?

What accidents have been caused by inadequate inspection

where the inspection involved inspection of multiple tracks from a hi-

rail vehicle? How many are there by category and what do they cost?

What other data do you have concerning the areas addressed

by the benefit/cost analysis?

Information pertaining to these subjects should be submitted to the

Docket Clerk, Office of Chief Counsel, Federal Railroad Administration,

400 Seventh Street, S.W., Mail Stop 10, Washington, D.C. 20590.

With this notice, FRA proposes to revise the Track Safety

Standards, 49 C.F.R. Part 213, using the proposed rule developed by the

Track Working Group and recommended by majority consensus by the RSAC,

including the preamble and the cost/benefit evaluation as modified by

FRA. The proposed rule is as follows:

I. Statutory Background

The Rail Safety Enforcement and Review Act of 1992, Public Law 102-

365,106 Stat. 972 (September 3, 1992), later amended by the Federal

Railroad Safety Authorization Act of 1994, Public Law 103-440, 108

Stat. 4615 (November 2, 1994), requires FRA to revise the track safety

regulations contained in 49 CFR Part 213. Now codified at 49 U.S.C.

Sec. 20142, the amended statute requires:

``(a) Review of Existing Regulations.--Not later than March 3,

1993, the Secretary of Transportation shall begin a review of

Department of Transportation regulations related to track safety

standards. The review at least shall include an evaluation of--

(1) procedures associated with maintaining and installing

continuous welded rail and its attendant structure, including cold

weather installation procedures;

(2) the need for revisions to regulations on track excepted from

track safety standards; and

(3) employee safety.

(b) Revision of Regulations.--Not later than September 1, 1995, the

Secretary shall prescribe regulations and issue orders to revise track

safety standards, considering safety information presented during the

review under subsection (a) of this section and the report of the

Comptroller General submitted under subsection (c) of this section.

* * * * *

(d) Identification of Internal Rail Defects.--In carrying out

subsections (a) and (b), the Secretary shall consider whether or not to

prescribe regulations and issue orders concerning--

(1) inspection procedures to identify internal rail defects, before

they reach imminent failure size, in rail that has significant

shelling; and

(2) any specific actions that should be taken when a rail surface

condition, such as shelling, prevents the identification of internal

defects.''

II. Regulatory Background

The first Federal Track Safety Standards were implemented in

October, 1971, following the enactment of the Federal Railroad Safety

Act of 1970 in which Congress granted to FRA comprehensive authority

over ``all areas of railroad safety.'' See 36 FR 20336 and 49 U.S.C.

20101 et seq. FRA envisioned the new standards to be an evolving set of

safety requirements subject to continuous revision allowing the

regulations to keep pace with industry innovations and agency research

and development.

FRA amended the Track Safety Standards with minor revisions several

times in the past two decades. It began a project to revise the

standards extensively in 1978, but later withdrew the effort when

investigation revealed that considerably more data collection and

analysis were necessary to support recommended revisions. A less

extensive revision of the Track Safety Standards was issued in

November, 1982. Since then, FRA has acquired much information crucial

to further development of the Track Safety Standards through the

enhanced statistical analysis capabilities resulting from additional

field reporting requirements and improved data collection processes.

III. Petitions for Rulemaking

In May, 1990, the Brotherhood of Maintenance of Way Employees

(BMWE) filed a petition with FRA to revise the Track Safety Standards.

The petition suggested substantive changes to the standards, the

addition of new regulations addressing recent developments in the

industry, as well as the reinstatement of many of the regulations

deleted from the standards in 1982. The BMWE also petitioned FRA to

further address employee safety by incorporating in the Track Safety

Standards certain sections of the Occupational Safety and Health

Standards presently administered by the U.S. Department of Labor.

In March, 1992, the Association of American Railroads (AAR)

submitted to FRA a list of recommended revisions to the Track Safety

Standards. The AAR suggested some changes in the wording of existing

regulations to provide additional flexibility to accommodate future

innovations in railroad technology. Several suggested revisions

included new approaches to determining compliance with certain existing

regulations. Most notable among those was AAR's proposal that the

revised track standards permit the use of a Gage Restraint Measuring

System (GRMS) in place of detailed crosstie and fastener requirements.

Lengthy discussions within the Track Working Group failed to result in

any agreement about that proposal, and the RSAC postponed making a

recommendation about the use of GRMS. On the other hand, RSAC

recommended that railroads develop individual programs for installation

and maintenance of continuous welded rail (CWR), provided those

programs meet certain minimum criteria.

IV. Proceedings to Date

On November 16, 1992, FRA published an Advance Notice of Proposed

Rulemaking (ANPRM) in this docket. See 57 FR 54038. The ANPRM

summarized FRA's knowledge about developments in the rail industry in

the past two decades and then posed some 52 questions regarding how

those developments should be addressed in the revised track safety

standards.

The ANPRM also announced plans for four public workshops in which

[[Page 36140]]

technically-knowledgeable persons with specialized experience in track

maintenance were invited to share their views with FRA in an informal

setting. The workshops were fact-finding sessions comprised of informal

give-and-take exchanges between industry, labor, and government

professionals charged with the administration of the track safety

standards on a day-to-day basis. They comprised an initial step by FRA

to use more active collaboration with labor, railroad management,

manufacturers, state governments, and public interest associations in

structuring the revised regulations.

The first workshop, held in Newark, New Jersey, on January 26,

1993, addressed such topics as responsibility of track owners,

inspection qualifications, restoration/renewal of track, and the 30-day

period in Sec. 213.9. A second workshop in Atlanta, Georgia, on January

28, 1993, covered such subjects as lateral track resistance, gage

restraint measurement, and vehicle track interaction. In the third

workshop held in Denver, Colorado, on February 23, 1993, topics

discussed were defective rails/remedial action, internal rail

inspection frequency, system tolerances and reliability, and torch cut

rail. The fourth workshop, a two-day session in Washington, D.C. on

March 30-31, 1993, covered such items of interest as excepted track,

inspection requirements, definitions, and the safety of maintenance-of-

way employees.

Participants in the workshops included representatives of major and

short line railroads, the AAR, the American Short Line Railroad

Association, the BMWE, as well as individuals with a particular

interest in certain areas of the track safety standards. In addition to

the workshops, FRA invited interested persons to submit written

comments to the questions posed in the ANPRM. Approximately 30

individuals, railroads, and industry groups submitted their suggestions

and observations.

Following the workshop in Washington, which included an extensive

discussion about the safety of maintenance-of-way employees, FRA

decided to isolate that issue from this proceeding so that it could be

addressed thoroughly in a separate rulemaking. That issue became the

focus of a proceeding addressing roadway worker safety, FRA's first

negotiated rulemaking. FRA established its first formal regulatory

negotiation committee in 1994. After months of discussions and debates,

the committee reached consensus conclusions and recommended provisions

for an NPRM to the Federal Railroad Administrator on May 17, 1995. An

NPRM based upon those recommendations was published on March 14, 1996

(see 61 FR 10528), and a final rule was issued on December 6, 1996 (see

61 FR 65959).

V. The Railroad Safety Advisory Committee

In past rulemakings, interested parties generally have approached

the proceedings in an adversarial manner, a tactic that often inhibited

the development of the best regulatory solutions to resolve difficult

safety issues. In addition, parties also have resorted to pressuring

Congress for legislation that would grant regulatory results with which

FRA disagreed or were at odds with FRA's regulatory agenda. FRA

concluded, therefore, that inclusion of these parties in its regulatory

process would result in a more positive approach to developing the best

solutions to pressing safety problems.

Although FRA gathered much information in the 1993 track workshops,

as well as in similar workshops associated with other rulemaking

proceedings, the agency recognized that continued use of these ``ad

hoc'' collaborative procedures for each rulemaking was not the most

effective means of accomplishing the agency's goal of achieving a more

consensual regulatory program. Following the success in 1995 of the

negotiated rulemaking addressing roadway worker safety, FRA decided

that several pending rulemakings, including this proceeding to revise

Part 213, should advance under a new rulemaking model that relies upon

consensus among various members of the affected industry and the

regulated community. On March 11, 1996, FRA announced formation of the

Railroad Safety Advisory Committee (RSAC), the centerpiece of the

agency's new regulatory program which emphasizes rulemaking by

consensus with those most affected by the agency's regulations. See 61

FR 740.

The RSAC is comprised of 48 individual representatives drawn from

27 member organizations. The membership of the RSAC is representative

of those interested in railroad safety issues, including railroad

owners, manufacturers, labor groups, state government groups, and

public interest associations. Its sponsor is the Federal Railroad

Administrator, who recommends specific issues for it to address. The

RSAC operates by consensus. It is authorized to establish smaller

``working groups'' to research and initially address the issues

recommended by the Federal Railroad Administrator and accepted by the

RSAC to resolve.

VI. Track Working Group

On April 2, 1996, the RSAC agreed to provide advice and

recommendations to FRA for revision of the Track Safety Standards in 49

CFR Part 213. The RSAC then assigned that responsibility to a

specialized working group comprised of approximately 30 representatives

from labor, railroads, trade associations, state government groups,

track equipment manufacturers, and FRA.

The Track Working Group met monthly from May, 1996, through

October, 1996, to develop a draft NPRM to recommend to the RSAC.

Minutes taken at each of the meetings are part of the docket for this

rulemaking. The provisions contained in this document largely reflect

the work accomplished by that group.

The Track Working Group identified issues for discussion from

several sources. One source of issues was, of course, the statutory

mandates issued by Congress in 1992 and in 1994. Several issues came to

the Track Working Group by way of requests for consideration made by

FRA's track safety Technical Resolution Committee. The group also

examined track issues involved in a number of recommendations made to

FRA by the National Transportation Safety Board (NTSB) in the past

decade. Discussions utilized information acquired by FRA through its

research and development program, as well as from findings from routine

agency investigations and accident investigations. Finally, the Track

Working Group systematically surveyed the existing regulations to

identify those sections and subsections that needed updating or, in

some cases, deletion.

Many of the issues engendered much discussion and debate within the

Track Working Group. Brief summaries of those discussions are recorded

in the appropriate parts of the section-by-section analysis portion of

this document. Technical details supporting certain recommendations are

not specified in this notice but are recorded in the docket and were

discussed by the Track Working Group. A few issues have been designated

by FRA to be ``major issues'' and are more fully discussed in the

following section.

V. Major Issues

This section contains FRA's analysis of a number of significant

issues that arose in this rulemaking. The analysis is based upon (1)

discussions by the Working Group and RSAC; (2)

[[Page 36141]]

comments, both oral and written, received by the agency following

publication of the ANPRM; (3) past statements of agency policies; (4)

legal research; and (5) agency compliance experience.

A. Continuous Welded Rail (CWR)

In the first track safety standards published in 1971, Sec. 213.119

dealt with CWR in a rather general manner, stating simply that CWR must

be installed at a rail temperature that prevents lateral displacement

of track or pull-aparts of rail ends, and that it should not be

disturbed at rail temperatures higher than the installation or adjusted

installation temperature. (See 36 FR 20341.) In 1979, when FRA proposed

a significant revision of Part 213, the agency suggested that this

subsection be eliminated because it provided ``little guidance to

railroads'' and was ``difficult to enforce.'' The agency further stated

that research had ``not advanced to the point where specific safety

requirements can be established.'' (See 44 FR 52114.) However, when the

proposed revision was withdrawn in 1981 (see 46 FR 32896), the proposal

to eliminate Sec. 213.119 was also abandoned. In the November, 1982

revisions to the Track Safety Standards Sec. 213.119 was deleted.

In the Rail Safety Enforcement and Review Act of 1992, Congress

mandated FRA to evaluate procedures for installing and maintaining CWR.

In 1994, in the Federal Railroad Authorization Act, Congress added an

evaluation of cold weather installation procedures to that mandate.

Following evaluation of those procedures, FRA proposes to return CWR

procedures to Part 213.

CWR is naturally subjected to high compressive and tensile forces

which, if not adequately restrained, can result in track buckling or

pull-aparts. The potential for track buckling increases as the ambient

air temperature increases while the potential for pull-aparts increases

as the ambient air temperature decreases. Track buckling tends to occur

under train movement and therefore can be instantaneous and somewhat

unpredictable.

In recent years, FRA engaged in a research program to develop

criteria and guidelines for improving CWR's resistance to buckling. The

program sought to (1) define critical forces and conditions associated

with track buckling, (2) quantify parameters which govern the

resistance of track to buckling, and (3) develop technology to detect

incipient failures prior to track buckling. Railroads have also

invested considerable resources into CWR research and employee training

which has resulted in a marked decrease in the number of reportable

buckled track incidents over the last decade. FRA's Accident/Incident

data base reveals that the number of reportable buckled track

derailments has been reduced by approximately 50% since 1985, dropping

from a yearly average of approximately 60 instances to approximately 30

such occurrences per year.

How a railroad provides the adequate lateral resistance to prevent

track buckling may vary from railroad to railroad. The Track Working

Group found that consistent methodology is not as important as

effective methodology in installing and maintaining CWR. Therefore, the

Track Working Group's recommendations are premised on the concept that

the regulations should provide railroads with as much flexibility as

safely feasible. The proposed standard, contained in a new subsection

(Sec. 213.119), allows railroads to develop and implement their

individual CWR programs based on procedures which have proven effective

for them over the years. At a minimum, procedures shall be developed

for the installation, adjustment, maintenance, and inspection of CWR,

as well as a training program and minimal requirements for

recordkeeping. FRA proposes to monitor the railroads adherence to these

procedures as well as the overall effectiveness of the CWR programs.

B. Excepted Track

With some limitations, the current regulation permits railroads to

designate track as ``excepted'' from compliance with minimum safety

requirements for roadbed, track geometry and track structure. This

provision was intended to allow for limited periods of operation over

track that was scheduled for abandonment or later improvement, and to

permit operations over low density branch lines and related yard tracks

in areas where it is highly unlikely that a derailment would endanger

persons along the right-of-way. In general, the purpose of this

provision has been realized.

However, the excepted track provision was not tightly drawn when

added in 1982. Critics of the present provision argue that it permits

tolerance of unsafe track conditions. For instance, trackage designated

as ``excepted'' sometimes traverses residential areas or exists within

close proximity to major population centers, and hazardous materials

frequently are moved over these tracks with some regularity.

FRA added the excepted track provision (Sec. 213.4) to the

regulations in response to an industry outcry for regulatory relief on

those rail lines producing little or no income. FRA believed that

without some relief for low density lines, railroads would accelerate

abandonment of those lines rather than invest their slim resources

where returns would be limited. Therefore, the 1982 revision provided

the industry with a means to operate over designated tracks without

complying with the substantive requirements of the Track Safety

Standards. FRA believed that the designated tracks would be located on

comparatively level terrain in areas where the likelihood was remote

that a derailment would endanger a train crew or the general public.

The current provision contains a number of operating restrictions,

including limitations on where excepted track can be located and the

number of cars containing hazardous materials (five) that can be hauled

in one train. Maximum speed is 10 m.p.h., and passenger service is

prohibited.

Despite these limitations, railroads have embraced the concept of

excepted track. In 1992, an FRA survey revealed the existence of

approximately 12,000 miles of designated excepted track nationwide, far

more than FRA envisioned when the provision was added to the

regulations. Recent surveys conducted by the AAR and ASLRA, which were

distributed to the Working Group members, currently indicate that

between 8,000 and 9,000 miles of excepted track presently exists

nationwide. FRA inspectors frequently find that railroads' legal use of

the excepted track provision is far from the provision's original

intent and purpose.

Comments given in response to the ANPRM, as well as some opinions

expressed within the Track Working Group, demonstrate that many

railroads favor maintaining an excepted track provision in the Track

Safety Standards. They argue that accident and injury data do not

support the notion that trackage in ``excepted'' status presents any

significant safety hazard. Short line railroads strenuously argue that

they depend on the provision in order to keep certain track segments in

business. Many short lines operate over track they acquired just before

abandonment by a major railroad. A significant number of those lines

serve only a handful of industries with comparatively small gross

tonnage. Eliminating the excepted track provision may result in the

demise of service to many short line railroad shippers, thus prompting

an increase in

[[Page 36142]]

rail traffic switching to highway transportation.

Others, however, favor abolishing the excepted track provision

because they believe it promotes tolerance of poor maintenance

practices and hazardous track conditions. Approximately 65% of all

reportable derailments on excepted track from 1988 through the third

quarter of 1995 were track-caused. Of this total, nearly 33% were

attributed to wide gage as a result of defective crossties or rail

fasteners. FRA and state inspectors have found instances where

railroads have taken advantage of the permissive language in the

section to conduct operations in a manner not envisioned by the

drafters of the provision. For example, a railroad removes a segment of

track from the excepted designation only long enough to move a train

with more than five cars carrying hazardous materials, or to operate an

excursion passenger train, and then replaces the segment in excepted

status as soon as the movement is completed. However, FRA's enforcement

policies and railroad compliance have reduced these instances.

For those reasons, the Track Working Group advised that the

excepted track provision be retained with certain new restrictions.

Significant revision proposed for Sec. 213.4 includes a new requirement

that the track owner must maintain gage to a 58\1/4\'' standard,

perform periodic switch inspections, and provide FRA with notification

10 days prior to removing track from excepted status. The revision also

proposes to change the word ``revenue'' to ``occupied'' in describing

passenger trains prohibited from operating over excepted track.

C. Liability Standard

The current track regulations are enforced against a track owner

``who knows or has notice'' that the track does not meet compliance

standards. This knowledge standard is unique to the track regulations;

other FRA regulations are based on strict liability. The knowledge

standard is founded on the notion that railroads should not be held

responsible for defects that may occur suddenly in remote locations.

Today, after years of track abandonments by major railroads, the

industry is responsible for maintaining about 200,000 miles of track.

Many defects occur suddenly in remote areas, making it difficult for

even the most diligent track inspectors to keep pace with all defects

as they happen.

With a knowledge standard attached to the track regulations,

railroads are held liable for non-compliance or civil penalties for

only those defects that they knew about or those that are so evident

the railroad is deemed to have known about them. FRA and state

inspectors meet this knowledge standard in a number of ways. Sometimes

they record and notify a railroad of a defect that they find, and then

re-inspect 30 days later to see if the defect has been repaired. If it

has not, they cite the railroad for a violation of the track safety

standards. While this method provides a failsafe way of proving

railroad notice of a defect, it is not always practicable for

inspectors to perform follow-up inspections 30 days later.

Often, inspectors choose to inspect the railroad's own inspection

records to see if a defect they have noted is recorded there. If it is,

the inspection record forms proof that the railroad had notice of the

defect. If the defect is not recorded in the railroad's inspection

records, but is of the nature that it would have had to exist at the

time of the railroad's last inspection (for example, defective

crossties or certain breaks that are covered with rust), the defect's

existence constitutes constructive knowledge by the railroad and the

railroad is cited for a violation. Although these inspection methods

are not enunciated in the regulations themselves, they reflect long-

standing FRA enforcement policy and are explained in FRA's Track

Enforcement Manual.

In its petition, the BMWE suggested that FRA put track owners under

strict liability standard by removing the phrase ``knows or has

notice'' from Sec. 213.5. Under that standard, any defect found by an

FRA inspector could be written as a violation regardless of the

railroad's ignorance of it. The AAR requested in its petition that FRA

develop performance standards for the track regulations. Certain

defects would not be cited as long as the track is performing safely,

making unnecessary many of the regulations (for example, inspection

requirements and the minimum number of crossties). Neither the BMWE nor

the AAR provided FRA with cost/benefit information to support their

respective requests.

This notice proposes to adopt the recommendation by the Track

Working Group and the RSAC to leave the standard of liability unchanged

as the best balance of all interests. Railroads will continue to be

held liable for track defects of which they knew or had notice. Notice

may include constructive knowledge of defects that, by their nature,

would have had to be in existence when the railroad was last required

to perform an inspection.

D. Plant Railroads and Industrial Spurs

FRA has elected not to exercise jurisdiction over the safety of

railroads that conduct their operations exclusively within an

industrial or military installation. Such operations have not

demonstrated the same degree and frequency of track problems found on

tracks in the general system which are subject to heavier tonnages and

more frequent use. Nevertheless, FRA recognizes its responsibility for

the safety of railroad employees and operations inside such facilities

where a general system railroad provides service on that property,

either by picking up and placing cars for transportation in interstate

commerce or by switching for the plant. The same responsibility applies

to operations on privately owned industrial spurs used exclusively by a

main line railroad to serve an industry.

The applicability section of the current Track Safety Standards

(Sec. 213.3) excludes track ``located inside an installation which is

not part of the general railroad system of transportation.'' This broad

statement implies that the track standards do not apply anywhere inside

a plant, regardless of who operates there or the type of operations

that occur on the plant track. However, Sec. 213.3 must be read in

conjunction with 49 CFR Part 209, Appendix A, which explains that any

plant railroad trackage over which a general system railroad operates

becomes subject to FRA regulations. With the entrance of a general

system railroad, the plant loses its insularity.

Since the enactment of the Federal Railroad Safety Act of 1970, FRA

has had at its disposal statutory authority to issue emergency orders

to repair or discontinue use of industrial or plant trackage should the

agency find that conditions of the track pose a hazard of death or

injury. See 49 U.S.C. Sec. 20901. It is FRA's opinion that this

emergency order authority is sufficient power to ensure track safety

within plants or installations. However, if conditions or events in the

future tend to demonstrate that track safety within plants or

installations should be more specifically regulated, FRA will seek to

change the applicability of this Part in a future rulemaking. This

notice proposes to leave the application section of the Track Safety

Standards unchanged.

E. Tourist Railroads

Congress granted FRA authority over all railroads, including

tourist railroads, in 1970 when it enacted the Railroad Safety Act, now

codified at 49 U.S.C. Sec. 20102 et seq. In the 1970's and early

[[Page 36143]]

1980's, tourist railroads were few in number, and the agency decided to

direct its manpower and resources towards ensuring safety on the

freight carriers and major passenger lines. As the 1980's progressed,

FRA began to witness a proliferation of tourist operations ranging in

description from very small operations carrying only a handful of

passengers a few days every year to large operations transporting

hundreds of passengers daily. Many are financially constrained and

dependent on volunteer labor, but others garner significant revenues

from transportation of thousands of riders. The tourist railroad

industry itself estimates that such railroads carry four to five

million passengers each year.

In 1992, FRA developed a policy for exercise of agency jurisdiction

over tourist railroads. The policy provides that FRA will exercise

jurisdiction over all tourist railroad operations except those that are

less than 24 inches in gage and/or insular. An insular tourist railroad

is one where operations are limited to a separate enclave in such a way

that they engender no reasonable expectation that the safety of any

member of the public (except a business guest, a licensee or affiliated

entity, or a trespasser) would be affected. An insular railroad cannot

have a public highway-rail crossing in use, an at-grade rail crossing

in use, a bridge over a public road or commercially navigable waters,

or a common corridor of 30 feet or less with another railroad.

The current Track Safety Standards apply only to those tourist

railroads that operate on the general system. Nevertheless, the Track

Safety Standards serve as benchmarks for evaluating the safety of

trackage off the general system.

In 1992, the Berkshire Scenic Railway Museum of Lenox,

Massachusetts, petitioned FRA to conduct a special proceeding on all

safety issues related to tourist railroads, suggesting that FRA phase

in Class 1 track standards for those non-general system properties to

which the standards do not currently apply. FRA denied the petition for

a special proceeding because of the agency's many rulemaking

commitments. However, FRA indicated a willingness to consider

suggestions for modification of safety standards for tourist railroads

within rulemaking proceedings already planned or underway.

In 1994, representatives of the tourist railroad industry proposed

to Congress that it amend certain parts of 45 U.S.C. Sec. 431, now

recodified at 49 U.S.C. Secs. 20101-20103, wherein FRA, through the

Secretary of Transportation, is granted plenary authority over the

safety of all railroads. The proposed legislation would have excluded

tourist railroads from Federal safety laws even if they operate over

the general system, as long as they do not ``interchange traffic'' with

the general system. Thus, an unregulated tourist train could operate on

the same track as a freight train, Amtrak, or commuter railroad.

Congress agreed that such a change would not be wise safety policy.

However, Congress also recognized that tourist railroads sometimes have

unique characteristics that affect how they comply with Federal safety

laws. Therefore, in enacting the Federal Railroad Safety Authorization

Act of 1994, Congress instructed FRA to consider ``factors that may be

unique'' to tourist railroads when prescribing safety regulations that

would apply to those railroads. See 49 U.S.C. Sec. 20103. Of course,

FRA had already made an informal commitment to the industry to consider

their unique factors in ongoing and future rulemakings.

FRA estimates that approximately 95 tourist railroads operating

over 1,350 miles of standard gage track off the general system are not

currently subject to the track safety standards. FRA sees the need to

address this growing market and increasing safety exposure in the area

of track safety, as well as other areas of rail operation. In April,

1996, the agency referred tourist railroad safety issues to the RSAC.

The RSAC, in turn, established a working group comprised of agency and

tourist railroad industry representatives to analyze the industry's

unique aspects and formulate recommendations for appropriate regulation

of that specialized industry. Because this working group will

investigate and examine issues of track safety on tourist railroads,

the Track Working Group decided not to discuss the subject. If the

Tourist Railroad Working Group sees the need to propose changes to Part

213 to accommodate that industry, it will recommend to RSAC that FRA

initiate a separate rulemaking to address those issues. Therefore, this

notice proposes no changes to the Track Safety Standards that are

directed specifically to tourist railroads.

F. Train Speed/Preemption

Under the current Track Safety Standards, FRA has only an indirect

role in determining speed limits. Railroads set train speed in their

timetables or train orders. Once a railroad sets a train speed, it must

then maintain the track according to FRA standards for the class of

track that corresponds to that train speed. The signal and train

control regulations also fix limits on train speed based upon the type

of signal system that is in place. If the railroad fails to comply with

track or signal system requirements for speed at which trains are

operated, the railroad is subject to penalty.

FRA's current regulations governing train speed do not afford any

adjustment of train speeds in urban settings or at grade crossings.

This omission is intentional. FRA believes that locally established

speed limits may result in hundreds of individual speed restrictions

along a train's route, causing train delays and increasing safety

hazards. The safest train maintains a steady speed. Every time a train

must slow down and then speed up, safety hazards, such as buff and

draft forces, are introduced. These kinds of forces can enhance the

chance of derailment with its attendant risk of injury to employees,

the traveling public, and surrounding communities.

FRA always has contended that Federal regulations preempt any local

speed restrictions on trains. Section 20106 of Title 49, United States

Code (formerly 45 U.S.C. Sec. 434) declares that--

``[l]aws, regulations, and orders related to railroad safety shall

be nationally uniform to the extent practicable. A State may adopt or

continue in force an additional or more stringent law, regulation, or

order related to railroad safety when the law, regulation, or order--

(1) is necessary to eliminate or reduce an essentially local safety

hazard; (2) is not incompatible with a law, regulation, or order of the

United States Government; and (3) does not unreasonable burden

interstate commerce.''

FRA's long-held belief that Part 213 preempts local speed laws was

verified by the U.S. Supreme Court in 1993 in the case CSX v.

Easterwood, 507 U.S. 658 (1993). The Court held that legal duties

imposed on railroads by a state's common law of negligence fall within

the scope of preemption provision of 49 U.S.C. 20106, which preempts

any state ``law, rule, regulation, order or standard relating to

railroad safety.'' The Court said that preemption of such state laws

``will lie only if the federal regulations substantially subsume the

subject matter of the relevant state law.'' Easterwood, 664. However,

the Court further stated that because Part 213 ties certain track

requirements to train speed, it should be viewed as ``covering the

subject matter'' of speed limits.

Notwithstanding some of the language in Easterwood that a cursory

reading may otherwise indicate, FRA has never

[[Page 36144]]

assumed the task of setting train speed. Rather, the agency holds

railroads responsible for minimizing the risk of derailment by properly

maintaining track for the speed they set themselves. For example, if a

railroad wants its freight trains to operate at 59 m.p.h. between two

certain locations, it must maintain the tracks between those locations

to Class 4 standards.

In recent years, FRA has encountered increasing pressure from

communities along railroad rights-of-way to set slower train speeds on

main tracks located in urban areas. They typically cite the inherent

dangers of grade crossings, as well as the risk of derailments of rail

cars containing hazardous materials.

As to grade crossings, FRA has consistently maintained that their

danger is a separate issue from train speed. The physical properties of

a moving train virtually always prevent it from stopping in time to

avoid hitting an object on the tracks regardless of the speed at which

the train is traveling. Prevention of grade crossing accidents is more

effectively achieved through the use of adequate crossing protection

and through observance by the driving public of crossing restrictions

and precautions. Therefore, FRA continues to sponsor and/or support

initiatives to improve safety at grade crossings under the Department

of Transportation's Grade Crossing Action Plan. These initiatives are

geared towards enhancing enforcement of traffic laws at crossings,

closing unneeded crossings, enhancing rail corridor crossing reviews

and improvements, expanding public education and Operation Lifesaver

activities, increasing safety at private crossings, improving data and

research efforts, and preventing rail trespassing.

In January, 1995, FRA implemented regulations for maintenance,

inspection and testing of warning devices at crossings, such as lights

and gates. See 59 FR 50086. The agency also implemented regulations

requiring certain locomotives to be equipped with auxiliary lights

making trains more visible to motorists, railroad employees, and

pedestrians. See 61 FR 8881. FRA believes that these measures are more

effective approaches to enhancing safety at grade crossings than an

attempt to design speed limits for each geographic situation.

G. Vegetation

The vegetation control requirements of Part 213 currently deal with

fire hazards to bridges, visibility of railroad signs and signals,

interference with normal trackside duties of employees, proper

functioning of signal and communication lines, and the ability to

inspect moving equipment (``roll by'' inspections). The regulation does

not address the issues of motorists' ability to see warning devices at

highway-rail crossings.

Since 1978, accidents and fatalities at highway-rail grade

crossings have decreased dramatically due to engineering improvements

at individual crossings, education of the public, and greater

enforcement of highway traffic laws. Nevertheless, FRA finds that the

present loss of life, injuries, and property damage are still

unacceptable. In 1995, 579 people were killed, and 1,894 suffered

serious injuries in grade crossing accidents. Highway-rail collisions

are the number one cause of death in the entire railroad industry, far

surpassing employee or passenger fatalities.

In lengthy discussions about vegetation at grade crossings, the

Track Working Group found itself grappling with a very complex issue

that cannot be resolved simply by requiring brush to be cut away from

grade crossings. The Track Working Group considered a proposal which

would have set sight distances for motorists approaching highway rail

grade crossings. However, the group quickly realized that the issue

requires the expertise of entities not represented on the Track Working

Group or RSAC, e.g., state and federal highway designers, traffic

engineers, as well as representatives of local jurisdictions with grade

crossings. This notice, therefore, proposes only one addition to

current requirements of railroads in maintaining vegetation. Under this

proposal, railroads will be required also to clear vegetation away from

signs and signals on railroad rights-of-way at grade crossings. Because

the scope of Part 213 limits vegetation requirements to railroad

property, this proposal does not attempt to dictate standards for

surrounding landowners. The additional language is intended only to

cover the clearing of vegetation at highway-rail grade crossings to

provide adequate visibility of railroad signs and signals; it is not

intended to cover or preempt state or local requirements for the

clearing of vegetation on railroad rights-of-way at highway-rail grade

crossings.

The RSAC views this proposed requirement as a first of several

regulatory steps to reduce the inherent dangers of highway rail grade

crossings. Along with the proposal for this additional requirement, the

RSAC, following a recommendation by the Track Working Group, has

requested that the FRA Administrator recommend that the Department of

Transportation initiate a joint regulatory proceeding by FRA and the

Federal Highway Administration to address vegetation maintenance and

sight distances for motorists at grade crossings. Should the Department

of Transportation decide not to initiate such a regulatory project, FRA

will then consider the next appropriate action which may include

launching its own regulatory proceeding.

H. Trackside Walkways

The Track Working Group agreed that it was not prepared at this

time to recommend to the RSAC whether or not this proceeding should

address trackside walkways. Therefore, this notice does not include any

proposals or discussions addressing this issue.

I. Gage Restraint Measurement System

Historically, railroads assess a track's ability to maintain gage

through visual inspections of crossties and rail fasteners. However,

the inability of the track structure to maintain gage sometimes becomes

apparent only after a derailment occurs. Many railroads throughout the

country have successfully tested the GRMS, which was developed under a

joint FRA/industry research project.

Accident statistics taken from FRA's Annual Accident/Incident

Bulletins reveal that from 1985 through 1995, reportable wide gage

derailments from defective crossties and fasteners totaled 2,232

instances and cost the industry over 60 million dollars in damages.

Current crosstie and fastener maintenance techniques rely heavily

on visual inspections by track inspectors, whose subjective knowledge

is based on varying degrees of experience and training. The subjective

nature of those inspections sometimes create inconsistent

determinations about the ability of individual crossties and fasteners

to restrain track gage. Crossties may not always exhibit strong

indications of good or bad condition. If a crosstie in questionable

condition is removed from track prematurely, its maximum service life

is unnecessarily shortened resulting in added maintenance costs for the

railroad. Yet, a crosstie of questionable condition left too long in

track can cause a wide-gage derailment with its inherent risk of injury

to railroad personnel and passengers and damage to property. In many

instances of gage failure caused by defective crossties and/or

fasteners, the static or unloaded gage is within the limits prescribed

by the current track standards. However, when a train applies an

abnormally high lateral load to a section of track that contains

[[Page 36145]]

marginal crosstie or fastener conditions, the result is often a wide

gage derailment.

In 1993, FRA granted CSX Transportation a waiver of compliance for

the purpose of conducting a test program to evaluate the GRMS

performance-based standard using FRA's research vehicle, in lieu of

existing crosstie and rail fastening requirements, on nearly 500 miles

of various track segments. The experience gained under this waiver has

provided FRA with the opportunity to continually make adjustments to

the conditional requirements of the waiver to the point where the

technology has proven itself to be a more consistent method of

objectively determining crosstie and fastener effectiveness. FRA

believes the technology is now ready to be deployed within the

industry.

Recently, CSX Transportation contracted for the design and

construction of a GRMS vehicle which has been approved by FRA for the

purposes of testing over the same waiver territory. CSX has contracted

for a second GRMS vehicle to be built, and several other Class 1

railroads have also contracted for the development of GRMS vehicles.

The key issue before the Working Group was whether this technology

should be used as a supplement to the existing crosstie and fastener

requirements, as an alternative to these existing requirements, or some

combination of both.

The Track Working Group could not reach consensus on whether or not

the revised standards should contain language to accommodate this

technology. The RSAC has recommended that a small task group continue

evaluating the possibility of developing GRMS standards for broader

application within the industry. This notice invites public comment

regarding the feasibility of this technology as an alternative

inspection standard or as an additional inspection method.

J. High Speed Rail Standards

By this notice, FRA proposes to facilitate further development of

high speed rail transportation by instituting safety standards for

track to be used by high speed trains. Current regulations contain six

classes of track that permit passenger and freight trains to travel up

to 110 m.p.h. Passenger trains have been allowed to operate at speeds

over 125 m.p.h. under conditional waiver granted by FRA. This notice

proposes to add three new classes of track that will designate

standards for track over which trains may travel at speeds up to 200

m.p.h. Standards for high speed track classes will be contained in a

new Subpart G of Part 213 which will cover track Classes 6 through 9.

These proposed track standards constitute only one of several

components comprising a regulatory program permitting trains to travel

at high speeds. Other factors FRA must address in regulations outside

of Part 213 include passenger emergency preparedness, wheel conditions,

braking systems, and grade crossings. These proposed standards are an

integral part of that larger regulatory scheme.

FRA's approach to track safety standards for high speeds is based

on the fundamental principle that vehicles in the high speed regime

must demonstrate that they will not exceed minimum vehicle/track

performance safety limits when operating on specified track. In

addition, railroads must monitor the vehicle/track system to ensure

that the safety limits will be met under traffic conditions.

A panel of experts in high speed rail transportation worked with

the Track Safety Working Group to provide recommendations for vehicle/

track performance limits and track geometry. The panel identified

acceleration and wheel/rail force safety criteria by reviewing

technical studies, considering foreign experience and practices, and

performing independent computer simulation and analytical studies. Once

it identified vehicle/track performance limits, the panel developed

specific geometry safety criteria. The panel also recommended

requirements necessary for track structure to sustain the forces

generated by vehicles at high speeds.

FRA's proposes to use the best available technical data about

dynamic performance of vehicle/track systems to develop safety

standards that are practical to implement. The proposed high speed

standards in this notice provide for the qualification of vehicles;

geometry standards for gage, surface, and alignment; track structure;

and inspection requirements for both automated and visual inspections.

While some of the sections in the proposed Subpart G are identical to

their counterparts in other sections of the regulation, the standards

for high speed operations generally differ markedly from those for the

lower track classes which cover a much broader range of railroad

vehicles. Several sections are unique to the high speed environment,

and other sections are adapted from requirements for the lower track

classes.

K. Torch Cut Rails

This notice addresses the practice by some railroads of using a

torch to cut rail, a practice that was widespread in the railroad

industry until a few years ago. Now the practice is used by most

railroads only for emergency repairs in Classes 3 through 5 track,

because technology has advanced to the point where cutting rail with

the various types of rail saws that are readily available is more

efficient than torch cutting. Nevertheless, torch cuts from years ago

when the practice was more prevalent still exist and are believed by

some to pose a safety hazard. In 1983, following its investigation of

an Amtrak derailment in Texas, the NTSB recommended that torch cuts be

removed and that trains move at only 10 m.p.h. over torch cuts made in

emergency situations or as a preparatory step in field welding. It

should be noted, however, that the rail involved in the Texas accident

had a type of high alloy content which the industry now recognizes as

inferior. It is no longer used in the industry.

Because rails that have been torch-cut have a greater tendency to

develop fractures in the short term, members of the Track Working Group

all agreed that the practice of torch-cutting rails should be

prohibited in the future in Classes 3 through 5 track. However, they

found it more difficult to agree on recommendations about what to do

with existing torch cuts. Labor union representatives on the Track

Working Group cited the known danger of torch cut rails in first

suggesting that they all be removed from track in Classes 3 through 6.

On the other hand, railroad representatives argued that torch cuts tend

to cause rail to fail early. They also asserted that torch cuts that

have existed for a long time generally will not cause rail breakage.

All parties agreed that torch cuts existing on yard tracks and main

tracks where trains operate at slow speeds (Classes 1 and 2) do not

pose as high a risk. FRA could provide no reliable data on the number

of existing torch cuts. The railroads reported that torch cuts no

longer exist on Class 6 track, and the torch cuts remaining in Class 5

track nationwide probably number ``in the hundreds.''

The Track Working Group agreed to recommend to the RSAC that

existing torch cuts in track Classes 1 and 2 be allowed to remain.

However, the practice of torch cutting rails in track Classes 3 and

above, except for emergency temporary repairs, will be prohibited in

the future. Existing torch cuts in Class 3 track over which regularly

scheduled passenger trains operate will be inventoried and any torch

cuts that are found later but are not listed on the inventory must be

removed. Torch cuts in Class 4 track

[[Page 36146]]

must be removed within two years of the effective date of this rule,

and torch cuts in Class 5 track must be removed within one year. The

RSAC and FRA adopted this proposal, further discussed in the Section-

by-Section portion of this notice.

L. Metric System

In the 1992 ANPRM, FRA requested comments in response to a proposal

to create a dual system of measurements, English and metric, for

inclusion in these regulations. Responses were varied. Some commenters

suggested that FRA implement metric standards, while others recommended

that a dual system would be better. Still others argued that the

addition of metric standards, whether as a single standard or in a dual

system with English standards, would cause confusion in the industry.

They added that computerized recordkeeping would have to be re-

programmed at a significant expense.

The RSAC, after a discussion of the issue by the Track Working

Group, decided not to recommend the addition of metric standards at

this time. Therefore, FRA concludes that the introduction of metric

values into the regulations is not appropriate at this time.

* * * * *

Section By Section Analysis

Section 213.1--Scope of the Part

The proposed amendment to this section would eliminate the word

``initial.'' When the Track Safety Standards were first published in

1971, they were referred to as ``initial safety standards'' because

they were the first Federal standards addressing track safety. Twenty-

five years and several amendments later, the current Track Safety

Standards are no longer initial standards. Therefore this amendment

will eliminate a mischaracterization of the standards by removing the

outdated descriptive ``initial.''

Section 213.2--Preemptive effect

This notice proposes to add this section to Part 213 to indicate

that states cannot adopt or continue in force laws related to the

subject matter covered in this rule, unless such laws are needed to

address a local safety hazard and they impose no undue burden on

interstate commerce. This section is consistent with the mandate of 49

U.S.C. Sec. 20106, formerly Sec. 205 of the Federal Railroad Safety Act

of 1970. Although the courts ultimately determine preemption in any

particular factual context, this section provides a statement of agency

intent and promotes national uniformity of regulation in accordance

with the statute.

Section 213.3--Application

This notice does not propose to amend this section. The RSAC's

Track Working Group discussed amending subsection (b) to reference

Appendix A of Part 209 in an effort to clarify FRA's safety policy

toward trackage used by general system railroads within the confines of

installations. According to Appendix A of Part 209, an plant owner is

held liable for the safety of any plant trackage over which a general

system railroad operates. The Working Group advised that a reference to

Appendix A of Part 209, which is merely a statement of FRA policy,

could have the effect of making all provisions of Part 213 enforceable

against thousands of plant owners, at least to the extent over which

general system railroads operate within plant borders. Such a result

would be more far-reaching than intended by the RSAC. Even while FRA

declines to apply Part 213 to plant railroads, the agency continues to

have safety jurisdiction over those railroads and may invoke its

statutory emergency authority if it deems it necessary in order to

safeguard anyone from the hazard of death or personal injury.

Section 213.4--Excepted Track

This notice proposes to maintain the provision for excepted track

with added restrictions for its use and maintenance. Since its

inception in 1982, the excepted track category has become an economic

issue for some small railroads, particularly short line railroads and

low volume shippers. It allows railroads to continue to use, on a

limited basis, low-density trackage that does not earn sufficient

revenue to justify the expense of maintaining it to higher track

standards. It allows short lines to acquire and use trackage that may

have been abandoned by larger railroads, thereby preserving rail

service to shippers and avoiding the necessity of shifting traffic over

those lines from moving to some other, perhaps more hazardous, means of

transport.

Because the majority of reportable derailments on excepted track

are track-caused, and the majority of this total are wide gage related,

this notice proposes to institute a requirement that gage must not

exceed of 58\1/4\'' on excepted track. This requirement will only apply

to the actual gage measurement itself, and will not extend to the

evaluation of crossties and fasteners which provide the gage restraint.

A clarification has been added to the inspection requirements on

excepted track which specifically reference turnout inspections as

being required under this section.

The proposal also includes a requirement that railroads notify FRA

at least 10 days before removing trackage from excepted status. This

provision is to prevent the practice FRA has witnessed in the past by

some railroads who remove trackage from excepted status only long

enough to move a passenger excursion train or a train with more than

five cars containing hazardous materials. Furthermore, the proposal

includes an edit to Sec. 213.4(e)(2) which changes the word ``revenue''

to ``occupied'' in describing passenger trains prohibited from

operating over excepted track. This change addresses a misconception by

some railroads that they could operate passenger excursion trains over

excepted track as long as they did not charge passengers admission for

a ride. The proposed change clarifies that the prohibition is directed

toward all passengers but is not meant to include train crew members,

track maintenance crews, and other railroad employees who must travel

over the track to attend to their work duties.

Section 213.5--Responsibility of track owners

This notice proposes changes to subsections (c) and (d) to modify

the way in which track owners may assign compliance responsibility to

another entity. Under the current regulations, a track owner may

petition the Federal Railroad Administrator to recognize another party

as the one primarily responsible for the maintenance and inspection of

the owner's track. This provision is intended to facilitate compliance

by track owners whose track is leased to another entity for operation.

Often track owners ( e.g., municipal communities, county governments)

do not have the necessary expertise to maintain compliance with Federal

track standards, but their track lessees do. Thus, track owners can

successfully petition FRA for reassignment of primary responsibility by

providing certain information about the assigned party and the

relationship of the assigned party to the track owner. When such a

petition is approved by FRA, the assigned party becomes responsible,

along with the track owner, for compliance with Part 213.

The proposed change for these subsections eliminates the approval

process by FRA, shown in years past to be the cause of unnecessary

paperwork. Records show that FRA has approved almost every such

petition it has reviewed. Under the proposed subsection, a track owner

could reassign

[[Page 36147]]

responsibility to another entity simply by notifying FRA's regional

administrator for the FRA region in which the track is located. The

notification would include the same information required for the

petitions under the current standards. However, FRA would discontinue

its practice of publishing in the Federal Register the petitions for

reassignment, along with requests for public comment. The reassignments

would no longer be reviewed by FRA's Railroad Safety Board.

FRA believes that the proposed change would not diminish track

safety. Although the intent of the original subsection was to give FRA

some control over who should be responsible for maintaining track, the

practical application of the subsection has shown that such control by

the agency is unnecessary. Rather, it is more important for FRA to know

what party or parties to hold responsible for compliance with track

safety standards. Therefore, the proposed subsection (c) would require

notification to the agency of reassignments of track responsibility,

but it would no longer require approval by FRA now required in

subsection (d). The text currently shown as subsection (d) would be

eliminated.

This notice also proposes one minor change in current subsection

(e), substituting the name ``Surface Transportation Board'' for

``Interstate Commerce Commission.'' This substitution is meant to

reflect Congress'' action in 1995 to eliminate the Interstate Commerce

Commission and turn over many of its functions to the new Surface

Transportation Board within the Department of Transportation. With the

elimination of the current text of subsection (d), this subsection now

designated as (e) would become subsection (d).

Section 213.7--Designation of qualified persons to supervise certain

renewals and inspect track

In the past, FRA has interpreted this section in a way that allowed

signal maintainers and other railroad employees to pass trains over

broken rails or pull-aparts in situations when they were the first on

the scene to investigate a signal or track circuit problem. Under this

interpretation, the intent of the regulation would not be violated if

signal maintainers or others had been given selected training relating

to the safe passage of trains over broken rails and pull-aparts. The

BMWE, however, has argued that this section was never intended to allow

for the partial qualification of personnel on Part 213 standards.

The RSAC recommends the creation of a new subsection (d) which

prescribes the manner in which persons not fully qualified as outlined

in paragraphs (a) and (b) of this section may be qualified for the

specific purpose of authorizing train movements over broken rails and

pull-aparts. Language in the new paragraph is specific to employees

with at least one year of maintenance of way or signal experience and

requires a minimum of four hours of training and examination on

requirements related to the safe passage of trains over broken rails

and pull-aparts. The purpose of the examination is to ascertain the

person's ability to effectively apply these requirements. It is not to

be used as a test to disqualify the person from other duties.

The maximum speed over broken rails and pull-aparts shall not

exceed 10 m.p.h. However, movement authorized by a person qualified

under this subsection may further restrict speed over broken rails and

pull-aparts if warranted by the particular circumstances. This person

must watch all movements and be prepared to stop the train if

necessary. Fully qualified persons under Sec. 213.7 must be notified

and dispatched to the location promptly to assume responsibility for

authorizing train movements and effecting temporary or permanent

repairs. The word ``promptly'' is meant to provide the railroad with

some flexibility in events where there is only one train to pass over

the condition prior to the time when a fully qualified person would

report for a regular tour of duty, or where a train is due to pass over

the condition before a fully qualified person is able to report to the

scene. Railroads should not use persons qualified under 213.7(d) to

authorize multiple train movements over such conditions for an extended

period of time.

Section 213.9--Classes of Track: Operating Speed Limits

This notice proposes to move Class 6 standards to Subpart G, a new

subpart which establishes track safety standards for high speed rail

operations. The new subpart will consist of Class 6 and three new track

classes, Classes 7 through 9, to accommodate train speeds up to 200

m.p.h. The Track Working Group and the RSAC recommend including Class 6

in the high speed standards because that class of track already

requires certain heightened maintenance practices not required by the

lower classes of track.

Section 213.11--Restoration or Renewal of Track Under Traffic

Conditions

An added phrase recommended by the RSAC for the end of this section

would clarify a qualified inspector's authority to limit the speed of

trains operating through areas under restoration or renewal. In the

Track Working Group, the BMWE expressed concern that the current

language of the section provides no guidance for track inspectors

determining the appropriate speed through restoration areas. The

language proposed by this notice gives a qualified track inspector

discretion to set train speed through a work area, but does not allow

the inspector to authorize trains to operate at speeds faster than the

maximum speed for the appropriate track class. This change does not

represent a change to past interpretation and enforcement of this

section; it is merely a clarification of established policy.

Section 213.15--Civil Penalty

This notice proposes no changes to this section. The section covers

all subparts to this part, including Subpart G. Appendix B, which sets

forth the civil penalty schedule for violations of this part, will be

revised in the final rule to include civil penalties for violations of

Subpart G.

Section 213.17--Exemptions

The Track Working Group considered a proposal by the BMWE that this

section be eliminated. However, the group agreed that the existing

language allowing for the temporary suspension of certain track

standards is appropriate and exemptions are necessary for the industry

to experiment with alternative methods of compliance and new

technology. Therefore, the RSAC recommended that this section be left

as currently written, and this notice proposes no changes to it.

Section 213.33--Drainage

In its 1990 petition for revision of the track standards, the BMWE

requested that this section be expanded to include more specific

requirements for drainage and water diversion around track roadbeds,

addressing water seeping toward the track, water falling upon the

roadbed, cross drainage, and the use of geotextiles. The proposal was

discussed by the Track Working Group, as was a proposal by the AAR that

merely modified the phrase ``clear of obstruction'' to ``sufficiently

clear of obstruction.'' After much discussion, the group recommended to

the RSAC that the section be left unchanged. Therefore, this notice

does not propose any changes to the requirements for

[[Page 36148]]

maintaining proper drainage adjacent to roadbeds.

Section 213.37--Vegetation

This notice proposes to add a phrase to subsection (b) to include

in the requirement to clear vegetation from signs and signals along

railroad rights-of-way and at highway rail grade crossings. The current

regulation stipulates only that vegetation cannot interfere with

visibility of railroad signs and signals. Because the scope of Part 213

limits vegetation requirements to railroad property, this proposal does

not attempt to dictate standards for surrounding landowners. The

additional language is intended only to cover the clearing of

vegetation at highway-rail grade crossings to provide adequate

visibility of railroad signs and signals; it is not intended to cover

or preempt state or local requirements for the clearing of vegetation

on railroad rights-of-way at highway-rail grade crossings.

Section 213.55--Alignment

This notice proposes to introduce a 31-foot chord requirement, in

addition to the present 62-foot chord requirement, for measuring

alignment on curves in Classes 3 through 5 track. The RSAC, on advice

from the Track Working Group, recommends this addition to control

transient short wavelength variations in alignment. This control is

considered necessary to introduce an averaging approach for the

application of the Vmax formula which determines the maximum

allowable operating speed for each curve. The change in the application

of the Vmax formula is discussed in Sec. 213.57 of this

notice.

Section 213.57--Curves; Elevation and Speed Limitations

The existing subsection (a) limits the design elevation on curves

to a maximum of six inches. However, this subsection also provides for

a deviation from this design elevation, which is contained in the

Sec. 213.63 table. For a curve elevated to six inches in Class 1 track,

the allowable deviation would be three inches and therefore any point

in that curve could have as much as nine inches of elevation and remain

in compliance. For a similar situation in Class 3 track, any point in

that curve could have as much as seven and three-fourths inches of

elevation and still be in compliance. For modern rail cars with a high

center of gravity, low speed curve negotiation under excessive levels

of superelevation places the vehicle in an increased state of

overbalance. This condition creates the possibility of wheel unloading

and subsequent wheel climb when warp conditions are encountered within

the curve.

The Track Working Group considered the characteristics of the

present-day vehicle fleet and concluded that a lower limit on maximum

elevation in a curve should be prescribed in the regulations.

Therefore, this notice proposes to revise subsection (a) to limit the

amount of superelevation at any point in a curve to not more than eight

inches on Classes 1 and 2 track, and not more than seven inches on

Classes 3 through 5 track.

Subsection (b) of this section addresses the maximum allowable

operating speed for curved track. The equilibrium speed on a curve is

the speed where the resultant force of the weight and centrifugal force

is perpendicular to the plane of the track. The American Railway

Engineering Association's (AREA) Manual of Engineering, Chapter 5,

states that passenger cars have been shown to ride comfortably around a

curve at a speed which produces three inches of underbalance, or

otherwise stated, three inches less elevation than would be required to

produce equilibrium conditions. The AREA Manual sets forth a formula

based on the steady-state forces involved in curve negotiation which is

commonly referred to as the Vmax formula. This formula

considers the variables of elevation, curvature, and the amount of

unbalanced elevation or cant deficiency in determining the maximum

curving speed. The present standards under subsection (b) limit curving

speed based on a maximum of three inches of unbalance or cant

deficiency and is commonly referred to as the ``three-inch unbalance

formula''. FRA has granted waivers for other levels of unbalance on

specified equipment.

Over the years, railroad engineers have differed as to the

application of this three-inch unbalance formula. Some engineers have

suggested the designed elevation and curvature should be used to

calculate the maximum operating speed around a curve. Other engineers

recommend that an average of the entire curve or segment of the curve

better recognizes situations where steady-state conditions change. For

example, the elevation may be decreased through a road crossing to

accommodate road levels and then increased beyond the crossing.

Recognizing the origin and purpose of the Vmax formula,

the Track Working Group recommended that an average of the alignment

and crosslevel measurements through a track segment in the body of the

curve should be used in the formula to arrive at the maximum authorized

speed. This approach recognizes the ``steady-state'' purpose of the

formula. Transient locations (points) are covered by the alignment and

track surface tables. Normally, approximately 10 stations are used

through the track segment, spaced at 15'6'' apart. If the length of the

body of the curve is less than 155 feet, measurements should be taken

for the full length of the body of the curve.

This uniform or averaging technique over the 10 stations through

the track segment is consistent with the concept used by the vehicle/

track dynamicists who discuss ``g'' levels in steady-state conditions,

often considered to be one or two seconds. At 80 m.p.h., a vehicle will

have traversed approximately 118 feet of track in one second.

Measurements taken over 155 feet (10 stations at 15'6'') provides the

necessary distance to determine the behavior of the vehicle over the

one-or two-second steady-state interval.

Analysis has shown that, although application of the

Vmax formula on a point-by-point basis is overly

conservative, it does provide for the coverage of certain combinations

of alignment and crosslevel deviations in Classes 3 through 5 track

which could result in wheel climb derailments. However, further

analysis has shown that these transient short-wave anomalies can be

covered by the introduction of a 31-foot chord to the alignment table

contained in Sec. 213.55.

The Track Working Group also recommended the addition of new

paragraphs (c), (d), (e), and (f) which will permit curving speeds

based on four inches of unbalance or cant deficiency for certain

categories of equipment that demonstrate safe curving performance at

this level of unbalance. The means of qualification is a basic

procedure known as a ``static lean'' test that has been used many times

in recent years for the testing of equipment for operation at higher

cant deficiencies. Although four inches of cant deficiency is usually

applied to passenger trains, other types of equipment with comparable

suspension systems, centers of gravity, and cross-sectional areas may

perform equally well. On the other hand, the Track Working Group did

not intend to suggest that standard freight equipment must have the

prerequisite vehicle characteristics which would allow curving speeds

based on more than three inches of cant deficiency. The Track Working

Group recommended that FRA review the information provided by the track

owner or operator to verify safe curving performance and approve the

proposal before the vehicles are operated at four inches of cant

deficiency.

[[Page 36149]]

This notice proposes to revise Appendix A, which currently contains

a table specifying the maximum allowable operating speed for each curve

based on three inches of cant deficiency. Under this proposed change,

Appendix A would be amended to include two tables. Table 1 would be

identical to the current table, while Table 2 would specify curving

speeds based on four inches of cant deficiency.

Section 213.63--Track Surface

The present track surface table contained in this section was

established in the original standards more than 20 years ago and has

served the industry well as a minimum safety requirement. However, some

of the parameters need updating to recognize the knowledge gained from

investigation of derailment causes, engineering analysis, and changes

in terminology. Therefore, this notice proposes several changes to

track surface requirements to better address current knowledge of

track/vehicle interaction.

This notice proposes that the parameter referring to the rate of

runoff at the end of a track raise and the parameter for deviation from

uniform profile should both remain unchanged. The profile parameter is

conservative for single occurrences on both rails and less conservative

for repeated perturbations.

In the 1982 revisions to the Track Safety Standards, the

requirement for maintenance of curve records, including degree of

curvature and the amount of elevation designated in curves was removed.

Since that time, the term ``designated elevation'' has been

controversial and difficult to apply. This notice proposes to remove

that term from the revised table.

This notice also proposes to revise the way the Track Safety

Standards address transition spirals. For many curves, especially in

the lower track classes, track maintenance personnel often differ as to

the locations where spirals begin and end, as well as to the measured

runoff rate. In view of the somewhat subjective nature of the concept

of uniform runoff in spirals, the proposed changes in this notice use a

different approach from runoff or ``variation in crosslevel in

spirals'' and incorporate this parameter into another parameter.

In the present track surface table, the maximum variation in

crosslevel in spirals could exceed that allowed on tangents and in the

full body of curves over the same distance. The mechanism for

derailment in the body of the curve is the same as in the spiral. This

notice proposes that the differences in crosslevel in spirals be

included in one parameter to simplify the table and correct the

discrepancy that currently exists. This notice also proposes that the

existing parameters referring to ``deviation from designated

elevation'' and ``variation in crosslevel'' in spirals are unnecessary,

provided spiral variations in crosslevel are included in the ``warp''

parameter. The ``warp'' parameter is measured by determining the

difference in crosslevel between two points less than 62-feet apart.

While the difference in crosslevel parameter (warp) addresses the

majority of situations where wheel climb or rock off can occur, three

footnotes are added to the table to address specific situations.

Footnote 1 addresses the present practice on some railroads to

design a greater runoff of elevation in spirals due to physical

restrictions on the length of spirals. Spiral runoff in new

construction must be designed and maintained within the limits shown in

the table for difference in crosslevel.

Footnote 2 is included to address the known derailment cause where

a warp occurs in conjunction with an amount of curve elevation that

approaches the maximum typically in use. When a vehicle is in an

unbalanced condition on this curve elevation and encounters a warp

condition, the vehicle is subjected to wheel/rail forces that could

result in wheel climb.

Footnote 3 is included to address the harmonic rock off problem of

which the railroad industry has been aware for many years. Under

repeated warp conditions, the vehicle can experience an increase in

side-to-side rocking that may result in wheel climb in curves or center

plate separation on tangents.

Section 213.109--Crossties

This notice proposes to amend this section to include several

recommendations made by the Track Working Group and adopted by the

RSAC. After reviewing FRA's Accident/Incident data base, the group

concluded that wide gage resulting from defective crossties continues

to be the single largest causal factor associated with track-caused

reportable derailments.

Gage widening forces applied to the track structure from the

movement of rolling stock tend to increase as track curvature

increases. Therefore, this notice proposes to increase the number of

effective crossties required under subsection (c) for turnouts and

curved track with over two degrees of curvature. The purpose of this

proposed requirement is to strengthen the track structure to enable it

to better resist such forces.

In Class 1 track, the required number of crossties in any 39-foot

segment of track would increase from five to six; in Class 2 track,

from eight to nine; in Class 3 track, from eight to 10; and in Classes

4 and 5 track, from 12 to 14. These changes are proposed to become

effective 2 years after the effective date of the final rule.

Under subsection (d), this notice proposes an optional requirement

for the number and placement of crossties near rail joints in Classes 3

through 5 track. The existing requirement calls for one crosstie within

a specified distance from the rail joint location, while the proposed

optional requirement allows two crossties, one on each side of the

joint, within a specified distance from the rail joint location. FRA

previously examined both standards under various static loading

conditions. The results indicated that the proposed optional

requirement provides equal or better joint support than the present

requirement.

This notice also proposes to add a new subsection (e) to address

track constructed without conventional crossties, such as concrete-slab

track. The existing standards do not address this type of construction

in which the running rails are secured through fixation to another

structural member. The proposed addition addresses this type of track

construction by requiring railroads to maintain gage, surface, and

alignment to the standards specified in subsections (b)(1) (i), (ii),

and (iii).

Section 213.113--Defective Rails

This notice proposes several substantive changes to this section

which reflect the results of FRA's on-going rail integrity research

program. The results indicate the need to revise the remedial action

tables and specifications to more adequately address the risks of rail

failure, reserving the most restrictive actions on limiting operating

speed for those rail defects which are large enough to present a risk

of service failure.

Because ``zero'' percent entries serve no useful purpose, they

should be dropped from the remedial action tables. Similarly, ``100''

percent of rail head cross-sectional area is not a meaningful dividing

point for transverse defects. The proposed revisions to the remedial

action table for transverse defects places a lower limit of five

percent of the rail head cross-sectional area. If a transverse defect

is reported to be less than five percent, no remedial action would be

required under the revised standards. Defects reported less than five

percent are not consistently found during rail breaking programs and

[[Page 36150]]

therefore defect determination within this size range is not always

reliable. Furthermore, if the determination is reliable, defect growth

to service failure size within the newly established testing frequency

under Sec. 213.237 is highly unlikely. The proposed revisions to the

remedial action table for transverse defects also establishes one or

more mid-range defect sizes, between five percent and 100 percent, each

of which will require specific remedial actions.

In the proposed revised remedial action table, all longitudinal

defects are combined within one group subject to identical remedial

actions based on their reported size. These types of longitudinal

defects all share similar growth rates and the same remedial actions

are appropriate to each type. The lower limit of ``0'' inches has been

eliminated and the size divisions have been revised upward slightly to

reflect FRA's research findings which indicate that this class of rail

defect has a relatively slow growth rate.

The ``0'' inch lower limit has been eliminated also for bolt hole

cracks and broken bases. The proposed revision also includes minor

changes in the size divisions for bolt hole cracks, as well as changes

in the required remedial action for broken bases less than 6 inches and

damaged rail.

This notice also proposes to add ``Flattened Rail'' to the rail

defect table. Although it is not a condition shown to affect the

structural integrity of the rail section, it can result in less-than-

desirable dynamic vehicle responses in the higher speed ranges. The

flattened rail condition is identified in the table, as well as in the

definition portion of subsection (b), as being \3/8\'' or more in depth

and 8'' or more in length.

The Track Working Group discussed at length a ``break out in rail

head'', but was unable to agree on a standard definition. The RSAC

therefore recommends that the industry continue to be guided by FRA's

current interpretation that a break out in the rail head consists of a

piece physically separated from the parent rail.

This notice also proposes to make several substantive revisions to

the remedial actions specified under ``Notes'' in subsection (a)(2) of

this section. A new note ``A2'' has been added to address the mid-range

transverse defect sizes which have been added to the table. This

remedial action allows for train operations to continue at a maximum of

10 m.p.h. for up to 24 hours, following a visual inspection by a person

designated under Sec. 213.7 of this part.

Note ``B'', which currently does not define a limiting speed, would

be changed to limit speed to 30 m.p.h. or the maximum allowable speed

under Sec. 213.9 for the class of track concerned, whichever is lower.

Notes ``C'', ``D'', and ``H'' have been revised to limit the

operating speed, following the application of angle bars, to 50 m.p.h.

or the maximum allowable speed under Sec. 213.9 for the class of track

concerned, whichever is lower. Presently, the standards limit speed to

60 m.p.h. or the maximum allowable speed under Sec. 213.9 for the class

of track concerned, whichever is lower.

A second paragraph in Note ``C,'' the remedial action which applies

specifically to detail fractures, engine burn fractures, and defective

welds, proposes a significant change to the current standards. This

revision addresses defects which are discovered in Classes 3 through 5

track during an internal rail inspection required under Sec. 213.237,

and whose size is determined not to be in excess of 25 percent of the

rail head cross-sectional area. For these specific defects, a track

owner may operate for up to four days at a speed limited to 50 m.p.h.

or the maximum allowable speed under Sec. 213.9 for the class of track

concerned, whichever is lower. If the defective rail is not removed or

a permanent repair made within four days of discovery, the speed shall

be limited to 30 m.p.h. until joint bars are applied.

Under the existing standards, these types of defects, predominant

on heavy utilization trackage, would require a 30 m.p.h. restriction

until angle bars are applied. Practice within the industry today is to

operate the rail test vehicle until the number of defects found exceeds

the railroad's ability to effect immediate repairs. At that time the

rail test vehicle is shut down for the day. The purpose of this

practice is to reduce speed restrictions which not only affect the

railroad's ability to move trains, but also can produce undesirable in-

train forces that can lead to derailments. However, prematurely

shutting down rail test car operations negate any possibility of

discovering larger and more serious defects that may lie just ahead.

Furthermore, the results of FRA's research indicate that defects of

this type and size range have a predictable slow growth life. Research

indicates that even on the most heavily utilized trackage in use today,

defects of this type and size are unlikely to grow to service failure

size in four days.

Section 213.119--Continuous Welded Rail (CWR); General

This notice proposes to introduce a requirement for railroads to

establish and place in effect written procedures to address CWR. These

procedures must address the installation, adjustment, maintenance and

inspection of CWR track, and include a formal training program for the

application of these procedures. The procedures, including a program

for training, must be submitted to FRA within six months following the

effective date of this rule. Although many railroads already have in

effect a CWR program, FRA will review each submitted set of procedures

for compliance with the individual requirements of the proposed

regulation.

Within the last decade, through the determined efforts of

researchers from industry and government, along with experience gained

from accident investigators and track maintenance people, the railroad

industry has gained a better comprehension of the mechanics of

laterally unstable CWR track. As a result, the industry has identified

maintenance procedures that are critical to maintaining CWR track

stability.

The proposed requirements do not detail how each procedure is to be

carried out. Rather, they identify the basic safety issues and permit

railroads to develop and implement their own procedures to address

those issues, provided the procedures are consistent with current

research results as well as findings from practical experience

documented in recent years. The procedures should be clear, concise,

and easy to understand by maintenance-of-way employees. A comprehensive

training program must be in place for the application of these

procedures.

The proposed regulation requires the designation of a ``desired

rail installation temperature range'' for the geographic area in which

the CWR is located. By definition contained in the proposed regulation,

this is the rail temperature range at which forces in CWR should not

cause a track buckle in extreme heat, or a pull-apart during cold

weather. Current general practice within the industry, based to a large

extent on research findings, is to establish a ``desired rail

installation temperature range'' which is considerably higher than the

annual mean temperature for the geographic area in which the CWR is

located. The proposed regulation provides railroads with flexibility to

establish the ``desired rail installation temperature range'' based on

the characteristics of the specific territory

[[Page 36151]]

involved and the historical knowledge acquired through the application

of past procedures.

When CWR is installed and anchored/fastened at the ``desired rail

installation temperature range,'' it is considered to be in its initial

``stress-free'' state, where the net longitudinal force is equal to

zero. Research discloses that many factors, some of which are

unavoidable, like dynamics of train operation, the necessary lining and

surfacing of the track structure, and performing rail repairs all

contribute to a gradual lowering over time of the initial rail

installation temperature range which increases the potential for track

buckling. This phenomenon substantiates the need to install and anchor/

fasten CWR at a relatively high rail installation temperature range.

Maintenance of the ``desired rail installation temperature range''

is critical to ensuring CWR stability. Therefore, the procedures for

installation, adjustment, effecting rail repairs, and repairing track

buckles or pull-aparts must compare the existing rail temperature with

the ``desired rail installation temperature range'' for the area

concerned.

The procedures also must address several other topics, such as rail

anchoring, controlling train speed when CWR track has been disturbed,

ballast re-consolidation, inspections, and recordkeeping for the

installation of CWR and rail repairs that do not conform to the

railroad written procedures. A track owner may update or modify CWR

procedures as necessary, upon notification to FRA of those changes.

Development of individual CWR programs could prove burdensome for

many small railroads. As recommended by the Track Working Group, FRA

will work with the American Short Line Railroad Association (ASLRA) to

develop a generic set of CWR procedures to apply to low speed/low

tonnage Class 2 and Class 3 railroad operations.

Section 213.121--Rail Joints

Under existing subsection (a), the phrase ``proper design and

dimension'' has often been interpreted to prohibit the use of any joint

bar on a rail section for which it was not specifically designed. This

interpretation does not consider the fact that certain joint bars are

interchangeable between different rail sections. Therefore, this notice

proposes to change the word ``proper'' to ``structurally sound'' in

subsection (a).

In subsection (b), this notice proposes to add the modifier

``excessive'' in front of the phrase ``vertical movement.'' The

existing language in this subsection implies that no vertical movement

of either rail could be allowed when all bolts are tight. This

interpretation is too strict. FRA's Enforcement Manual suggests that

FRA inspectors evaluate excessive vertical movement when determining

compliance with this paragraph. This proposal will make the rule

conform to sound practices.

This notice proposes to extend to Class 2 track the prohibition of

torch cutting bolt holes in rail. The reference to angle bars has been

removed and is to be covered in the proposed new subsection (h) which

restricts the practice of re-configuring joint bars. Joint bars for

older rail sections are becoming increasingly difficult to find and are

no longer being manufactured. Therefore, the new subsection (h)

prohibits the re-configuration of joint bars in Classes 3 through 5

track, but not in Classes 1 and 2 track.

Section 213.122--Torch Cut Rail

This proposed new section addresses the proper handling of rails

cut by the use of a torch. The practice of torch-cutting rail at one

time was commonplace on railroads, but was discontinued in higher speed

track several years ago when better saws were developed and railroads

discovered that rails that have been torch-cut have a greater tendency

to develop fractures. Today, on track Classes 3 and above, the practice

is used almost exclusively for temporary emergency repairs that are

then quickly replaced with new rail. The purpose of this section is to

outlaw the practice of torch cutting rails, except for emergency

repairs, on all track in classes above Class 2. Trains speed for track

that has been torch cut for emergency repairs made after the effective

date of this rule must be reduced to the maximum allowable speed for

Class 2 until the torch cut rail is replaced.

The proposed section also provides railroads with guidance for

eliminating old torch cut rail in track Classes 3 through 5. The

industry believes no torch cuts exist in Class 6 track. Torch cuts in

Class 5 track must be eliminated within a year of the effective date of

this rule, while torch cuts in Class 4 track must be removed within two

years. Within one year of the effective date of this rule, railroads

must inventory existing torch cuts in any Class 3 track over which

regularly scheduled passenger trains operate. Those torch cuts found

and inventoried will be ``grandfathered in.'' Any torch cuts that are

found on such track after the expiration of one year and that are not

inventoried will be limited immediately to Class 2 speed and removed

within 30 days of discovery. If a railroad chooses to upgrade a segment

of track from Classes 1 or 2 to Class 3, and regularly scheduled

passenger trains operate over that track, the railroad must remove any

torch cuts before the speeds can be increased beyond the maximum

allowable for Class 2 track. If a railroad chooses to upgrade a segment

of track from any class of track to Class 4 or 5, it must remove all

torch cuts.

Section 213.123--Tie Plates

This notice proposes to add a new subsection (b) to this section

which reads, ``In Classes 3 through 5 track, no metal object which

causes a concentrated load by solely supporting a rail shall be allowed

between the base of rail and the bearing surface of the tie plate.''

Similar wording for this paragraph was originally recommended to the

RSAC by FRA's Technical Resolution Committee.

The specific reference to ``metal object'' is intended to include

only those items of track material which pose the greatest potential

for broken base rails such as track spikes, rail anchors, and shoulders

of tie plates. The phrase ``causes a concentrated load by solely

supporting a rail'' further clarifies the intent of the regulation to

apply only in those instances where there is clear physical evidence

that the metal object is placing substantial load on the rail base, as

indicated by lack of load on adjacent ties.

Section 213.127--Rail Fastening Systems

This notice proposes to change the title of this section from

``Rail fastenings'' to ``Rail fastening systems'' and to reduce the

language of the regulation to one sentence which reads ``Track shall be

fastened by a system of components which effectively maintains gage

within the limits prescribed in Sec. 213.53(b).''

The change to ``rail fastening systems'' more adequately addresses

the many individual components of modern-day elastic fastening systems,

such as pads, insulator clips, and shoulder inserts. The failure of

certain critical components within the system could adversely affect

the ability of the individual fastener to provide adequate gage

restraint. The revised language of the regulation provides for an

evaluation of all components within the system, if necessary, in order

to evaluate whether they are affording effective gage restraint.

The RSAC considers the current reference to qualified Federal or

State

[[Page 36152]]

track inspectors and the definition of a qualified State track

inspector to be redundant, given the adoption of Part 212. Therefore,

this notice proposes to delete the phrase ``qualified Federal or State

track inspector,'' as well as the last sentence of the current section

which contains the definition of a qualified state track inspector.

Section 213.133--Turnouts and Track Crossings Generally

This notice proposes to retain the language of subsection (a) which

reads, ``In turnouts and track crossings, the fastenings must be intact

and maintained so as to keep the components securely in place.'' The

AAR proposed to revise the language to say, ``* * * the fastenings must

be maintained for the safe passage of trains.'' The AAR contended that

turnout and track crossings are designed with a high degree of

redundancy, making it unnecessary for each fastening to be intact to

maintain safety. However, the RSAC recommends that the regulations

allow track inspectors discretion to evaluate immediate circumstances

in determining what level of remedial action is necessary for loose or

missing fastenings. RSAC recommends that inspectors be provided

specific guidance about interpreting this provision, such as the

guidance contained in technical bulletin T-95-09 recently issued by

FRA.

This notice proposes to change subsection (b) to reflect proposals

presented by the BMWE and by the AAR and FRA. The RSAC recommends that

rail anchoring requirements be extended to include Class 3 trackage and

that ``rail anchors'' be changed to ``rail anchoring `` so that rail

anchoring would include elastic rail fasteners.

Section 213.135--Switches

This notice proposes to revise subsection (b) to consider the

existence of reinforcing bars or straps on switch points where joint

bars cannot be applied to certain rail defects, as required under

Sec. 213.113(a)(2), because of the physical configuration of the

switch. In these instances, remedial action B will govern, and a person

designated under Sec. 213.7(a), who has at least one year of

supervisory experience in track maintenance, will limit train speed to

that not exceeding 30 m.p.h. or the maximum allowable under

Sec. 213.9(a) for the appropriate class of track, whichever is lower.

Of course, the person may exercise the options under Sec. 213.5(a) when

appropriate.

The RSAC did not recommend specific dimensions for determining when

switch points are ``unusually chipped or worn,'' as provided for in

subsection (h). FRA stated that its Accident/Incident data base

indicates that worn or broken switch points are the largest single

cause of derailments within the general category of ``Frogs, Switches,

and Appliances.'' However, the AAR contended that developing meaningful

numbers for these measurements would be a difficult task because most

of these derailments are related also to other causal factors such as

wheel flange condition, truck stiffness, and train handling

characteristics. This notice, therefore, proposes to retain the current

wording in subsection (h), allowing qualified individuals to evaluate

immediate circumstances to determine when switch points are ``unusually

chipped or worn.''

A new subsection (i) is proposed by this notice to read, ``Tongue

and plain mate switches, which by design exceed Class 1 and excepted

track maximum gage limits, are permitted in Class 1 and excepted

track.'' This new subsection provides an exemption for this item of

specialized track work, primarily used in pavement or street railroads,

which by design does not conform to the maximum gage limits prescribed

for Class 1 and excepted track.

Section 213.137--Frogs

This notice proposes to add a new subsection (d) to this section,

which reads, ``Where frogs are designed as flange-bearing, flangeway

depth may be less than that shown for Class 1 if operated at Class 1

speeds.'' This subsection provides an exemption for an item of

specialized track work which by design does not conform to the minimum

flangeway depth requirements prescribed in subsection (a) of this

section.

Section 213.143--Frog Guard Rails and Guard Faces; Gage

To facilitate an easier understanding of the requirements contained

in this section, this notice proposes to add a diagram to illustrate

the method for measuring guard check gage and guard face gage. The

proposal contains no substantive changes to this section.

Section 213.205--Derails

This notice proposes to add language to this section designed to

ensure that derails are maintained to function properly. The RSAC

recommended these changes as additional safety features for train

crews, as well as railroad employees working on and around tracks.

Section 213.233--Track Inspections

This notice proposes several changes to subsection (b). The five

m.p.h. restriction over highway crossings is eliminated to permit safe

operation of vehicles through highway traffic. However, the subsection

would still require an inspector to perform an adequate inspection,

regardless of how the inspector operates over the crossing. Also, the

word ``switch'' is replaced by the word ``turnout'' to clarify the

track device originally intended to be addressed in the regulation.

The Track Working Group considered advising the RSAC to recommend

specific speed restrictions for inspection vehicles. However, after

several lengthy discussions, the group suggested instead that this

subsection provide the individual inspector with sole discretion in

determining vehicle speed based on track conditions, inspection

requirements, and other circumstances that may vary from day to day and

location to location. The group also suggested the insertion of a

footnote at the end of this section which indicates this discretion is

not limited by any other part of this section, and is extended to

determine sight distance (``visibility remains unobstructed by any

cause'') which is referenced in subsections (b) (1) and (2) of this

section.

The existing language under subsection (b) does not specify how

many tracks may be inspected in one pass of an inspection vehicle in

multiple track territory. FRA has never issued interpretive language

regarding this issue, opting to judge the overall effectiveness of the

inspection program rather than the specific manner in which it was

conducted. This notice proposes to establish some guidelines for hy-

rail inspections conducted in multiple track territory.

As a result, subsection (b) contains additional language specifying

the number of additional tracks that can be inspected, depending on

whether one or two qualified individuals are in the vehicle, and

depending on the distance between adjacent tracks measured between

track centerlines. Inspectors may inspect multiple tracks from hy-rail

vehicles only if their view of the tracks inspected is unobstructed by

tunnels, differences in ground level, or any other circumstance that

would prevent an unobstructed inspection of all the tracks they are

inspecting. The revised subsection also requires railroad to traverse

each main track bi-weekly and each siding monthly, and to so note on

the appropriate track inspection records.

[[Page 36153]]

With respect to the inspection frequency required in subsection

(c), neither the Track Working Group nor the RSAC could reach agreement

in determining a frequency requirement that would be based on speed,

tonnage, or track usage. Therefore, this notice does not propose to

change the language in this subsection.

Section 213.235--Switch and Track Crossing Inspections

This notice proposes to change subsection (a) by adding the word

``turnout'' after the word ``switch'' to clarify the track device and

the intent of the requirement which is to inspect the entire turnout.

The word ``switch'' is retained to include switch point derails or any

other device which is not considered a full turnout.

A second sentence is added to subsection (a) which reads, ``Each

switch in Classes 3 through 5 track that is held in position only by

the operating mechanism and one connecting rod shall be operated to all

of its positions during one inspection in every 3-month period.'' The

nature of this type of switch requires a thorough inspection of the

critical parts, some of which are non-redundant. This is best

accomplished by operating the switch mechanism to allow for a better

inspection of these components. The phrase ``all positions'' is

intended to cover slip switches and lap switches.

In subsection (b), the word ``turnout'' is added after the word

``switch'' for the same reasons explained above.

Section 213.237--Inspection of Rail

Under existing subsection (a), the Track Safety Standards require

Classes 4 and 5 track, as well as Class 3 track over which passenger

trains operate, to be tested annually for internal rail defects. This

requirement was established at a time when main line freight traffic

was considerably lighter than it is today. At the time the original

standards were drafted, test frequencies generally equated to intervals

between 15 and 20 million gross tons (MGTs), although there existed

some track that carried 40 MGTs or more in one year. As a matter of

practice, railroads generally test more often than presently required

under the standards, with intervals between tests typically ranging

from 20 to 30 MGTs. These typical intervals define a good baseline for

generally accepted maintenance practices, and the industry's rail

quality managers consider these limits as points of departure for

adjustment of test schedules to account for the effects of specific

track characteristics, maintenance, traffic, and weather.

This notice proposes to leave unchanged the present annual test

requirement for Classes 4 and 5 track and Class 3 track over which

passenger trains operate, based on risk factors associated with freight

train speeds and passenger train operations. However, with the high

utilization trackage that now exists on Class 1 freight railroads, the

original requirement based solely on the passage of time, without

regard to tonnage, is no longer adequate.

Selecting an appropriate frequency of rail testing is a complex and

somewhat controversial task involving many different factors including

temperature differential, curvature, residual stresses, rail sections,

and cumulative tonnage. Taking into consideration all of the above

factors, FRA's research suggests that 40 MGTs is the maximum tonnage

that can be hauled between rail tests and still allow a safe window of

opportunity for detection of an internal rail flaw before it propagates

in size to service failure. This notice proposes that intervals be set

at once per year or 40 MGTs, whichever is shorter, for Classes 4 and 5

track and for Class 3 track over which passenger trains operate.

This notice also proposes that Class 3 trackage not supporting

passenger traffic be subject to testing for internal rail defects.

FRA's Accident/Incident data point to a need for inclusion of all Class

3 trackage in a railroad's rail testing program. Therefore, this notice

proposes to add a requirement that Class 3 track over which passenger

trains do not operate be tested once a year or once very 30 MGTs,

whichever is longer.

This notice proposes the limit of once a year or 30 MGTs because a

more frequent testing cycle or a cycle identical to that proposed for

Classes 4 and 5 track would be too burdensome for the industry. The

proposed limits are designed to give short line railroads and low

tonnage branch lines some relief from the introduction of a new

regulatory requirement and still reduce the present risks associated

with not testing Class 3 track at all.

This notice also proposes the addition of subsections (d) and (e).

Subsection (d) addresses the case where a valid search for internal

rail defects could not be made because of rail surface conditions.

Several types of technologies are presently employed to search for

internal rail defects, some with varying means of displaying and

monitoring search signals. Therefore, this notice does not define a

non-test in absolute technical terms, but rather leaves this judgment

to the rail test equipment operator who is uniquely qualified on that

equipment.

Proposed subsection (e) specifies the options available to a

railroad following a non-test due to rail surface conditions. These

options must be exercised prior to the expiration of time or tonnage

limits specified in paragraph (a) of this section.

Section 213.239--Special Inspections

The RSAC recommended no change to this section, and likewise, FRA

proposes no change to the language in the regulation. However, FRA

believes that an explanation of agency policy interpreting the section

is in order. Although the section contains a sample list of surprise

events that occur in nature, FRA does not view this provision as

limited to only the occurrences listed or to only natural disasters.

``Other occurrences'' also includes such natural phenomena as

temperature extremes, as well as unexpected events that are human-made,

e.g., a vehicle that falls on the tracks from an overhead bridge, a

water main break that floods a track roadbed, or terrorist activity

that damages track. This interpretation is not new; FRA has always

viewed this section to encompass sudden events of all kinds that affect

the safety and integrity of track.

Section 213.241--Inspection Records

This notice proposes to change the requirement that railroads

retain a record of each track inspection at division headquarters for

at least one year. When this provision in subsection (b) was first

written, railroads maintained many division headquarters throughout

their systems, making it relatively convenient for railroads to

maintain inspection records at these locations. Over the years,

however, railroads consolidated many of their headquarters, often

naming only a few locations as ``division headquarters.'' FRA has

contended that maintaining inspection records in only a few locations

over a system that may include thousands of miles of track was not in

keeping with the spirit of the regulation. Railroads have argued, on

the other hand, that compelling them to maintain headquarters for no

other purpose than to store records was a burdensome requirement.

The proposed change would allow railroads to designate a location

within 100 miles of each state where records can be viewed by FRA track

inspectors following 10 days notice by FRA. The provision does not

require the railroads to maintain the records at these designated

locations, only to be able to provide viewing of them at the locations

within 10 days after notification. The

[[Page 36154]]

proposal stipulates locations within 100 miles of each state, rather

than locations in each state, to accommodate those railroads whose

operations may cross a state's line by only a few miles. In those

cases, the railroad could designate a location in a neighboring state,

provided the location is within 100 miles of that state's border.

A change to subsection (c) requires a track owner to record any

locations where a proper rail inspection cannot be performed because of

rail surface conditions. A new provision at Sec. 213.237(d) specifies

that if rail surface conditions prohibit the railroad from conducting a

proper search for rail defects, a test of that rail does not fulfill

the requirements of Sec. 213.237(a) which requires a search for

internal defects at specific intervals. The new language in subsection

(c) of this section requires a recordkeeping of those instances.

This notice also proposes to add a provision for maintaining and

retrieving electronic records of track inspections. Patterned after an

experimental program successfully tried by the former Atchison Topeka &

Santa Fe Railroad with oversight by FRA, the provision in subsection

(e) allows each railroad to design its own electronic system as long as

the system meets the specified criteria to safeguard the integrity and

authenticity of each record. The provision also requires that railroads

make available paper copies of electronic records when needed by FRA or

by railroad track inspectors.

Subpart G--High Speed Track Standards

Section 213.301--Scope of Subpart.

Subpart G applies to track required to support the passage of

qualified flanged wheel, high speed passenger and freight equipment in

specific speed ranges. The terms ``qualified'' and ``flanged wheel''

are necessary to limit the scope of this subpart to track that is

designed for equipment which has been ``qualified'' to operate on that

track within acceptable safety limits. For high speeds, the track and

the vehicles operated on the track must be considered as an integral

system. This subpart does not apply to technology such as ``Maglev''

that does not use flanged wheel equipment.

Section 213.303--Responsibility for Compliance

Only two response options are available under this paragraph. Track

owners who know or have notice of non-compliance with this subpart may

either bring the track into compliance with the subpart or halt

operations over that track. This section does not offer the railroad

the option of operating under this subpart with the supervision of a

qualified person, as in the standards for track Classes 1 through 5.

Such an option would permit too much opportunity for disaster from

human error. Under this subpart, if a track does not comply with the

requirements of its class, it must be repaired immediately or train

speeds must be reduced to the maximum speed for the track class with

which the track complies. It may be necessary on occasion for the track

owner to reduce the class of track to Class 5 or below. When this

occurs, the requirements for the lower classes (1-5) will apply.

Section 213.305--Designation of Qualified Individuals; General

Qualifications

Work on or about a track structure supporting qualified high speed

passenger trains demands the highest awareness of employees about the

need to perform work properly.

A person may be qualified to perform restorations and renewals

under this subpart in three ways. First, the person may combine five or

more years of supervisory experience in track maintenance for track

Class 4 or higher and the successful completion of a course offered by

the employer or by a college level engineering program, supplemented by

special on-the-job training. Second, a person may be qualified by a

combination of at least one year of supervisory experience in track

maintenance of Class 4 or higher, 80 hours of specialized training or

in a college level program, supplemented with on-the-job training.

Under the third option, a railroad employee with at least two years of

experience in maintenance of high speed track can achieve qualification

status by completing 120 hours of specialized training in maintenance

of high speed track, provided by the employer or by a college level

engineering program, supplemented by special on-the-job training.

Similarly, a person may be qualified to perform track inspections

in Classes 6, 7, 8 and 9 by attaining five or more years of experience

in inspection in track Class 4 or higher and by completing a course

taught by the employer or by a college level engineering program,

supplemented by special on-the-job training. Or, the person may be

qualified by attaining a combination of at least one year of experience

in track inspection in Class 4 and higher and by successfully

completing 80 hours of specialized training in the inspection of high

speed track provided by the employer or by a college level engineering

program, supplemented with on-the-job training. Finally, a person may

be qualified by attaining two years of experience in track maintenance

in Class 4 and above and by successfully completing 120 hours of

specialized training in the inspection of high speed track provided by

the employer or by a college level engineering program, supplemented by

special on-the-job training provided by the employer with emphasis on

the inspection of high speed track. The third option is intended to

provide a way for employees with two years of experience in the

maintenance of high speed track to gain the necessary training to be

qualified to inspect track.

For both categories of qualifications, the person must have

experience in Class 4 track or above. To properly maintain and inspect

Class 4 track or higher requires a level of knowledge of track geometry

and track conditions that are not as readily obtained at lower classes.

Persons who are qualified for high speed track must know how to work,

maintain, and measure high quality track. Experience in Class 4 track

is established as a lower limit to provide a pool of candidates, that

may be drawn from freight railroads, who would provide the necessary

experience on well-maintained track.

This section also includes specific requirements for qualifications

of persons charged with maintaining and inspecting CWR. Training of

employees in CWR procedures is essential for high speed operations.

Each person inspecting and maintaining CWR must understand how CWR

behaves and how to prevent track buckles and other adverse track

reactions to thermal and dynamic loading.

Section 213.307--Class of Track: Operating Speed Limits

For several years, passenger service on the Northeast Corridor has

operated at 125 m.p.h. under conditional waivers granted by FRA. Amtrak

has established specific procedures for this category of speed from

which the railroad industry has accumulated valuable knowledge about

track behavior in this speed range. The speed of 125 m.p.h. is the

natural boundary for the maximum allowable operating speed for Class 7

track. Because trainsets have operated in this country at speeds up to

160 m.p.h. for periods of several months under waivers for testing and

evaluation, the maximum limit of 160 m.p.h. is established for Class 8.

In the next several years, certain operations, like the Florida

Overland Express, may achieve speeds of up to 200 m.p.h. Class 9 track

is established

[[Page 36155]]

for this possibility. The exceptions for the maximum allowable

operating speeds for each class of track parallels the standards for

the lower classes, except that a speed of 10 m.p.h over the maximum

intended operating speeds is permitted during the qualification phase

per Section 213.345.

Although high speed rail is most often considered in terms of

passenger travel, non-passenger high speed train service (e.g., the

mail trains operated by Amtrak on the Northeast Corridor) is also a

possibility. All equipment, whether used for passenger or freight, must

demonstrate the same vehicle/track performance and be qualified on the

high speed track. Hazardous materials, except for limited and small

quantities, may not move in bulk on trains operated at high speeds. The

limitations noted are similar to those involved in commercial passenger

and freight air travel.

Section 213.309--Restoration or Renewal of Track Under Traffic

Conditions

This section addresses two elements of concern: (1) that the

stability of the track structure not be significantly degraded and (2)

that roadway worker safety not be compromised. For restoration under

traffic conditions, this section allows only track maintenance that

does not affect the safe passage of trains and involves the replacement

of worn, broken, or missing components or fastenings or minor levels of

spot surfacing.

Section 213.311--Measuring Track Under Load; Section 213.317

Exemptions; Section 213.319 Drainage; Section 213.321 Vegetation

These sections are identical to the corresponding sections in the

standards for track Classes 1 though 5.

Section 213.323--Track Gage

This section introduces limits for change in gage. Analysis has

shown that an abrupt change in gage can produce significant wheel

forces at high speeds. The minimum and maximum limits for gage values

Classes 6, 7, 8 and 9 were set to minimize the onset of truck hunting.

Section 213.327--Alignment

Uniformity is established by averaging the offset values for nine

points centered around each point along the track at a spacing

specified in the table. Uniformity defined in this way applies

anywhere--curves, tangent segments, and spirals. Analysis has shown

that points in transition areas such as around the ``point-of-spiral-

to-curve'' can be included in this averaging technique. No distinction

is made as to where the uniform calculation takes place. Tangent,

curve, and spiral transitions have historically been difficult to

determine in the field. The use of the uniformity filter obviates the

need to make determinations based on the identification of these

transitions.

This section provides three chord lengths for different types of

vehicle/track interaction modes. Chords of 31-, 62-, and 124-foot

lengths provide control of single and multiple defects in the

wavelength bands most likely to affect vehicle dynamics and ride

quality.

The 62-foot chord was selected because of its proximity to the

truck center spacing of most high speed passenger vehicles. In phase

carbody resonance modes such as bounce, roll and sway are most affected

by track anomalies with a wavelength that is near the truck center

spacing. Control of track geometry limits based on the 62-foot chord

will help reduce the magnitude of such carbody motion. This chord also

is predominantly used for track Classes 1 through 5 and is familiar to

track inspection and maintenance personnel.

The 31-foot chord controls short wavelength defects that can result

in high wheel forces over a short portion of track. These forces may

not produce excessive carbody motion, yet their action on the wheels

and truck may cause derailment. Most foreign high speed railroads use a

10-meter chord which is approximately equal in length to the 31-foot

chord required in this section.

To control longer wavelengths, most foreign high speed railroads

use a 30-or 40-meter chord. The 124-foot chord, which is approximately

equal to a 40-meter chord, provides a means to locate and measure

longer wavelength track anomalies. These long-wavelength anomalies

provide dynamic input to the high speed rail vehicles and can excite

carbody resonance modes at high speeds. Excessive carbody motion can

lead to poor carbody accelerations and wheel/rail forces, and in the

extreme, may also cause derailment.

Addition of this chord length allows measurement of anomalies with

wavelengths up to 300 feet. The Japanese National Railway adopted a 40-

meter chord after recent speed increases on its Tokaido line. Research

and testing indicated a stronger correlation between carbody motion and

track geometry limits based on 40-meter mid-chord offsets.

Section 213.329--Curves, Elevation and Speed Limitations

The determination of the maximum speed that a vehicle may operate

around a curve is based on the degree of curvature, actual elevation,

and amount of unbalanced elevation where the actual elevation and

curvature are derived by a moving average technique. This approach is

as valid in the high speed regime as in the lower classes. The moving

average technique recognizes the steady state (one or two second

duration) nature of the Vmax formula.

The maximum operating speed for each curve is determined by the

Vmax formula:

[GRAPHIC] [TIFF OMITTED] TP03JY97.010

Where

Vmax = Maximum allowable operating speed (miles per hour).

Ea = Actual elevation of the outside rail (inches).

Eu = Unbalance elevation or cant deficiency

D = Degree of curvature (degrees).

While the cant deficiency proposed in Classes 1 through 5 is three

or four inches, cant deficiencies proposed for qualified high speed

train are considerably higher. FRA has granted waivers for up to nine

inches for revenue service and up to twelve inches for testing for

qualified equipment. Higher cant deficiencies are allowed for high

speed trains that may include tilting systems. The qualification

testing will ensure that the vehicle will not exceed the vehicle/track

safety performance limits set forth in this subpart when operating at

these higher cant deficiencies.

In order to qualify the vehicle at higher cant deficiencies, the

railroad must provide technical testing information using the same

procedures that have been used in past years for waivers for higher

cant deficiencies. This procedure is commonly called the ``static lean

test'' where the vehicle is elevated on one side and wheel loads are

measured and the roll angle is determined. Based on acceptable testing

information and other technical submissions, FRA will approve the

higher cant deficiencies for the specific vehicle type. Equipment that

has already been qualified under conditional approval by FRA shall be

considered as having complied with this qualification process.

The maximum crosslevel on the outside of a curve is established at

seven inches. Elevation in excess of that

[[Page 36156]]

amount presents a safety consideration for freight trains with high

centers of gravity, operating at lower speeds in the curve.

Section 213.331--Track Surface

The chord lengths in the table are selected for the same reasons

discussed in Sec. 213.327 (alignment). The multiple chords measure

different surface anomaly wavelengths.

The surface table addresses both single and multiple events.

Studies have shown that the smaller limits are necessary when surface

anomalies repeat themselves three more times over the specified chord

length. The parameter commonly called ``warp,'' the difference in

crosslevel between any two points, does not require a specific limit

for repeated warp conditions at high speeds.

Section 213.333--Automated Vehicle Inspection Systems

Technology is available today to perform three essential tasks

necessary for high speed train operation: track geometry measuring

systems (TGMS), gage restraint measuring systems (GRMS), and vehicle/

track performance measuring systems. The vehicle/track performance

systems encompass both acceleration and wheel force measurements. These

functions may be combined in the same or different vehicles. This

section provides for the implementation of these systems.

The GRMS is primarily used on timber-tied track of certain freight

railroads, to evaluate the effectiveness, on a continuous basis, of

rail/tie fastening systems. This section requires the use of GRMS in

Classes 8 and 9 to measure the gage restraint of the track, including

the strength of the ties and the ability of the fastenings to maintain

gage. Specified safety limits were established after testing on the

Northeast Corridor where the track is predominately concrete-tied with

timber tie turnouts. GRMS on concrete ties is effective in identifying

defective ties and conditions with missing fasteners or a relaxation of

toe load of gage-side rail fasteners. GRMS is required in Classes 8 and

9 to measure the resistance of the track to forces generated by wheel

flanging in the gaging space. The use of the GRMS is necessary to

insure sufficient gage restraint at the gage limits set to control

truck hunting.

Railroads that operate trains at speeds above 110 mph universally

employ automatic track geometry measuring systems to generate data to

point out train safety hazards in the track structure. Reliance on only

visual inspections to locate small track irregularities is difficult.

In France, track geometry measuring vehicles are operated quarterly

over high speed lines for the purpose of collecting track maintenance

data. Track safety inspections are based on the exercise of an

instrumented vehicle drawn from the high speed fleet. The French

National Railroad (SNCF), exhibits confidence in relying on truck and

carbody performance specifications to guarantee safe behavior at the

wheel/rail interface and this initiative has been proven in service.

This section requires vehicle/track measurements to be made by

truck frame accelerometers and carbody accelerometers, and by

instrumented wheelsets to measure wheel/rail forces. Functional truck

side and carbody accelerometers are required in at least two vehicles

in each train in Classes 8 and 9. The track owner is required to have

in effect written procedures for the notification of track forces when

the devices indicate a possible track-related condition. An

instrumented car in Classes 7, 8 and 9, or a portable device that

monitors on-board instrumentation on trains, must be operated at the

revenue speed profile at the specified frequency to monitor carbody and

truck frame accelerations to ensure that the vehicle/track performance

limits contained in this section are not exceeded.

For Classes 8 and 9, a car equipped with instrumented wheelsets

must be operated annually to ensure that the wheel/rail force safety

limits are not exceeded.

The safety limits contained in the Vehicle/Track Interaction

Performance Limits table were derived from technical literature, years

of research, experience by foreign railroads, and computer simulation

and validation. They must not be exceeded either during the

qualification phase required under Sec. 213.345 or in the periodic

measurement of accelerations and wheel/rail forces required in this

section.

The minimum vertical wheel load safety limit is 10 percent of the

static vertical wheel load. The static vertical wheel load is defined

as the load that the wheel would carry while stationary on level track.

This safety criteria assures that no excessive wheel unloading is

experienced by any wheel on the operating vehicle. Significant wheel

unloading greatly increases the risk of derailment in the dynamic

environment of a vehicle traveling at high speed.

The ratio of the lateral force that any wheel exerts on an

individual rail to the vertical force exerted by the same wheel on the

rail (L/V ratio) is limited by the Nadal formula. The limit on any

wheel's L/V ratio ensures that the risk of a wheel climb derailment is

minimized. The wheel flange angle referenced in the formula

should correspond to actual measurements of wheel flange angle as

provided by the requirements of the vehicle qualification testing

specified in Sec. 213.345.

The net axle lateral force exerted by any axle on the track should

not exceed 50 percent of the static vertical load exerted by the same

axle. This safety criteria ensures that no excessive track panel shift

or misalignment is produced by the moving vehicle. For vehicles

operating at high speeds, track panel shift can produce unsafe carbody

and/or truck motion and, in the extreme, can cause derailment.

The ratio of the lateral forces that the wheels on one side of any

truck exert on an individual rail to the vertical forces exerted by the

same wheels on that rail must not exceed 0.60. This limit ensures that

the risk of a rail rollover derailment is minimized.

The lateral carbody peak-to-peak acceleration (defined by the

algebraic difference between the two extreme values of measured

acceleration within a one-second duration) is limited to 0.5g. Carbody

lateral accelerations above this limit reflect a very poor ride quality

and a degraded track and/or vehicle condition.

The vertical carbody peak-to-peak acceleration (defined by the

algebraic difference between the two extreme values of measured

acceleration within a one-second duration) is limited to 0.6g. Carbody

vertical accelerations above this limit also reflect a poor ride

quality and a degraded track and/or vehicle condition.

The Root Mean Square (RMS) of the lateral truck acceleration for

any two-second duration is limited to 0.4 g. This safety limit ensures

that no sustained truck hunting is experienced by the moving vehicle.

Sustained truck hunting produces undesirable ride quality and

significantly increases the risk of derailment. The RMS of the lateral

truck acceleration must be calculated over a two-second window from

which the mean value of the acceleration has been removed.

The vertical truck zero-to-peak acceleration is limited to 5.0 g.

Exceeding this safety limit can indicate undesirable short wavelength

track anomalies.

Ultimately, vehicle/track interaction safety is assured by

controlling wheel/rail forces to safe limits. Appropriate limits for

track geometry and vehicle response acceleration provide strong

[[Page 36157]]

indications of the likely wheel/forces which would be produced by

operating trains. Use of an instrumented wheelset also provides a level

of safety assurance for new and unusual vehicle designs that differ

from the conventional vehicle dynamic models that were used to develop

the track geometry and vehicle/track interaction limits.

Section 213.335--Crossties

Various types of crossties may be installed in high speed track

provided that the ties maintain the proper gage, surface and alignment.

Slab track (track imbedded in concrete) or other construction may also

be used if the construction complies with the requirements of this

section. Because of the wide use of concrete ties in high speed track

throughout the world, this section establishes safety requirements for

concrete ties.

The requirements for ties in this subpart differ from those in the

corresponding section for crossties in Classes 1 through 5. For non-

concrete-tied construction, the requirements for ties parallel those of

the lower standards except that permissive lateral movement of tie

plates is set at \3/8\ inch instead of \1/2\ inch and a requirement for

rail holding spikes is added.

For concrete-tied track, effective ties must not exhibit the known

failure modes listed. These failure modes were derived largely from

experience in the Northeast Corridor. The number and distribution

requirements of both non-concrete ties and concrete ties is more

stringent than the requirements for the lower classes. For example, 14

effective concrete crossties in Class 6 and 16 effective concrete ties

are required in Classes 7, 8 and 9 in each 39-foot segment of track.

For both concrete and timber construction, a minimum number of non-

defective ties is specified on each side of a defective tie.

Section 213.337--Defective Rails

The requirements for the identification of rail flaws and

appropriate remedial action are valid in high speed track classes as

well as the lower track classes. This section is unchanged from the

standards for the lower classes except that language references to

specific lower classes are deleted as unnecessary. If severe rail

surface conditions (such as corrugation, shelling, spalling, and

checking) occur in high speed lines, they likely will lead to degraded

vehicle/track performance and require the track owner to reduce speeds.

Therefore, remedial requirements for these conditions are the same as

those for the lower track classes. The flattened rail head is

especially important to identify in high speed track because of the

adverse effect on track geometry cause by the short anomaly of a

depression in the rail.

Section 213.339--Inspection of Rail in Service

A continuous search for internal rail defects must be made of all

rail in track in track Classes 6, 7, 8 and 9 at a frequency of twice

per year. This requirement is consistent with the frequency used on

Amtrak's Northeast Corridor (essentially, Class 6 and 7) and as well as

the approach used in France which inspects rails are in the track twice

a year. The same requirements for Classes 1 through 5 apply if a rail

flaw inspection cannot be made over a particular segment of track.

Section 213.341--Initial Inspection of New Rail and Welds

This section provides for the initial inspection of new rail,

either at the mill or within 90 days after installation, and for the

initial inspection of new welds made in new or used rail. It also

provides for alternatives for these inspections. Compliance with the

initial inspection of new rail and welds may be demonstrated by in-

service inspection, mill inspections, welding plant inspections, and

inspections of field welds.

Section 213.343--Continuous Welded Rail (CWR)

As with CWR for the lower classes of track, FRA will review the

railroad's written procedures for the installation, adjustment,

maintenance and inspection of CWR, and training for the application of

these procedures.

Section 213.345--Vehicle Qualification Testing

All rolling stock, both passenger and freight, must be qualified

for operation for its intended class. This section ``grandfathers''

equipment that has already operated in the specified classes. Rolling

stock operating in Class 6 within one year prior to the promulgation of

this rule shall be considered as qualified. Vehicles operating at Class

7 speeds prior to the promulgation of the rule under conditional

waivers are qualified for Class 7. This includes equipment that is

presently operating on the Northeast Corridor at Class 7 speeds.

The qualification testing will ensure that the equipment will not

exceed the vehicle/track performance limits specified in Sec. 213.333

at any speed less than 10 m.p.h. above the proposed maximum operating

speed. Testing at a maximum speed at least 10 m.p.h. above the proposed

operating speed is required. The test report must include the design

flange angle of the equipment that will be used for the determination

of the lateral to vertical wheel load safety limit for the vehicle/

track performance measurements required in Sec. 213.333(k).

Subsection (d) requires the operator to submit an analysis and

description of the signal system and operating practices to govern

operations in Classes 7, 8 and 9. This submission will include a

statement of sufficiency in these areas for the class of operation

intended. Based on test results and submissions, FRA will approve a

maximum train speed and value of cant deficiency for revenue service.

Section 213.347--Automotive or Railroad Crossings at Grade

There are no highway or railroad grade crossings on the Amtrak

route between Washington, DC and New York City. Much of this line is

operated by revenue passenger trains at 125 m.p.h. (Class 7 speeds).

Highway crossings and railroad crossings at grade (diamonds) may not be

present in Class 8 and 9 track.

Technology currently is being developed that would prevent

inappropriate intrusion of vehicles onto the railroad rights-of-way.

This technology involves the use of barrier systems with intrusion

detection and train stop, as well as advance warning systems. Because

the technology is under development, it would be premature to include

specific requirements for barrier systems and related technology in

this section. However, the railroad is required to submit for approval

a description of the crossing warning system for each crossing.

Section 213.349--Rail End Mismatch

Vertical or horizontal mismatch of rails at joints must be less

than one-eighth of an inch for Classes 6 through 9. A more restrictive

criteria is not necessary and would be impractical.

Section 213.351--Rail Joints

This section is less permissive than its counterpart for the lower

speed classes. Fracture mechanics tests and analyses demonstrate that

there is no place in the high speed train operating regime for

defective joint bars. The propagation rate of a crack large enough to

be visible in a joint bar is unpredictable. Once a joint bar has

ruptured, its companion joint bar is immediately in danger of overload.

Upon discovery of a defective joint bars, the track owner must reduce

the track class at the location of the

[[Page 36158]]

defective bar and proceed according to the requirements of Subpart D.

Section 213.353--Turnouts and Crossovers, Generally

The requirements in this section are similar to those in the lower

classes. Fastenings must be intact and maintained so as to keep the

components securely in place. Each switch, frog, and guard rail must be

free of obstructions that may interfere with the passage of wheels.

Rail anchoring is required to restrain rail movement affecting the

position of switch points and frogs.

Experience in this country with the maintenance of turnouts and

crossovers in high speed territories is limited. The use of

conventional switch and frog components in present-day 125 m.p.h. track

can produce harsh vehicle response which, while not necessarily unsafe,

is likely to be less and less welcome in the future, particularly at

train speeds above 125 m.p.h.

Worldwide, the trend for turnouts and crossovers in high speed

lines is toward reliance on long switch points and moveable point

frogs. Amtrak has some limited experience with these features at fairly

high train speeds, and the western coal railroads have a great deal of

experience, especially with moveable point frogs, with turnout

component performance in low speed, cumulative tonnage conditions. This

section requires that the track owner, intending to operate trains at

high speeds, to develop a turnout and inspection handbook for the

instruction of employees involved in this work. Requirements for

switches, frogs, and spring frogs that are present in the standards for

the lower classes are not specifically listed, but will be addressed in

the railroad's Guidebook.

The purpose of such a document is to encourage formal consideration

of problems associated with inspection and maintenance of these track

features and to establish a consistent system approach to the

performance of related work.

Section 213.355--Frog Guard Rails and Guard Faces; Gage

The most restrictive practical measurements for these important

parameters are included. The limits for guard check and guard face gage

are set at a limit that permits minimal wear.

Section 213.357--Derails

Because it is essential that railroad rolling stock be prevented

from fouling the track in front of a high speed train, this section

presents strict requirements for derails to be fully functional and

linked to the signal systems.

Section 213.359--Track Stiffness

Track must have sufficient vertical strength and lateral strength

to withstand the maximum loads generated at maximum permissible train

speeds, cant deficiency and lateral or vertical defects so that the

track will return to a configuration in compliance with the track

performance and geometry requirements of this subpart. It is imperative

that the track structure is structurally qualified to accept the loads

without unacceptable deformation.

Section 213.361--Right-Of-Way

This section requires the track owner to submit a barrier plan,

termed a ``right-of-way plan,'' to FRA for approval. The plan will

include, at a minimum, provisions in areas of demonstrated need to

address the prevention of vandalism by trespassers and intrusion of

vehicles from adjacent rights of way. A particular form of vandalism,

the launching of objects from overhead bridges or structures, is

specifically listed.

Section 213.365--Visual Inspections

Visual inspections are considered to be an important component of

the railroad's overall inspection program. The section largely

parallels the requirements for the lower classes. The inspection

requirements are twice weekly for Classes 6, 7 and 8 and three times

per week for Class 9. Turnouts and crossovers must be inspected in

accordance with the Guidebook required under Sec. 213.353. The practice

in France of operating a train at reduced speeds following a period

with no train traffic is adopted in this section.

Section 213.367--Special Inspections

The requirements of this section are the same as those for the

lower track classes except that the occurrence of temperature extremes

is specifically listed as an event that requires a track inspection.

Section 213.369--Inspection Records

The requirements of this section are the same as those for the

lower track classes.

Environmental Impact

FRA has evaluated these proposed regulations in accordance with its

procedures for ensuring full consideration of the potential

environmental impacts of FRA actions, as required by the National

Environmental Policy Act (42 U.S.C. 4321 et seq.) and related

directives. These proposed regulations meet the criteria that establish

this as a non-major action for environmental purposes.

Appendix

FRA plans to revise Appendix B to Part 213--Schedule of Civil

Penalties, to include penalties for violations of the provisions of

Subpart G and to be included in the final rule. Because such penalty

schedules are statements of policy, notice and comment are not required

prior to their issuance. See 5 U.S.C. 553(b)(3)(A). Nevertheless,

interested parties are welcome to submit their views on what penalties

may be appropriate.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

This proposed rule has been evaluated in accordance with existing

policies and procedures. It is considered to be significant under both

Executive Order 12866 and DOT policies and procedures (44 FR 11034,

February 26, 1979) because of substantial public interest and safety

implications. FRA has prepared and placed in the docket a regulatory

analysis addressing the economic impact of the rule. Document

inspection and copying facilities are available at 1120 Vermont Avenue,

N.W., Seventh Floor, Washington, D.C. Photocopies may also be obtained

by submitting a written request to the FRA Docket Clerk at the Office

Chief Counsel, Federal Railroad Administration, 400 Seventh Street,

S.W., Mail Stop 10, Washington, D.C. 20590.

FRA's economic analysis showed that there was less certainty about

the economic impact of the proposed rule than would be the case for a

rule developed within an agency, rather than through the RSAC process.

The proposed standards were developed by consensus among members of a

Working Group of the Rail Safety Advisory Committee (RSAC). The RSAC

process affects the shape of the rule very dramatically, because the

process relies on a consensus to adopt recommendations. It also permits

input on variables for which little data exists. Therefore, neither the

underlying rule nor this analysis could assume the shape they would

have had the more traditional rulemaking process been followed.

Further, the RSAC process resulted in many unrelated changes to

individual sections, which were best analyzed section-by-section. In

its conclusion, the FRA finds that the net effect is an increase in

safety and an increase in the burden on the railroads,

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but that the burden on the railroads is not likely to be as great as

the benefit, although there was no way to quantify the magnitude on the

net benefit.

The Track Working Group formed, reached a consensus on internal

working procedures, and addressed the issues. Several issues were

delegated to task groups, which are subgroups of the working group. The

procedure remained the same. The task groups could make no

recommendations until they had a consensus. The working group would not

adopt any recommendation, even if a result of a consensus in the task

group, until there was a consensus in the working group. The full RSAC

would make no recommendation to the Administrator until there was a

majority consensus in the full RSAC, even if there was a consensus in

the working group.

An implication of this is that no entity's representative would

accept a consensus agreement, unless the entity he or she represent

would be at least as well off after the agreement as it had been

before. This analysis therefore uses as a fundamental assumption that

there are no provisions which will impose drastic costs on any segment

represented by members of the Working Group, and Pareto superiority of

the proposal over the current rules. Pareto superiority implies that no

party would be willing to pay to return to the current standards,

although some party might be indifferent between the current standards

and the proposal. There is no implication that the proposal is Pareto

optimal, although Pareto optimality has not been excluded. Were the

proposal Pareto optimal, there would not exist another possible set of

rules which at least one party would be willing to pay to adopt, and

the amount that party would be willing to pay would be sufficient, were

it given to other parties, to induce them to agree to the set of rules.

Nor is the proposal assumed to be optimal. Were it optimal the total

net benefit would be maximized.

The guidance in E.O. 12866 is that we should select the rule with

the maximum net benefit. We cannot know if we have done that here. What

we know is that the proposal is closer to the optimum than the current

rules. The guidance in the Regulatory Flexibility Act is that we should

adopt rules which are flexible, fitting in with how businesses actually

conduct operations, and being sensitive to the concerns of small

businesses. Clearly the RSAC process does this.

Involvement of Small Entities

All of the small entities directly affected by this rule are short

line railroads. They are represented by the American Short Line

Railroad Association (ASLRA). They were members of the working group

that developed this proposal, and of all of the smaller Task Groups

addressing particular subsets of issues in which they were interested.

They were not, of course, involved in developing those standards which

would not apply to any of their members, for example the high speed

track standards. The ASLRA agreed to the proposal, as did all members

of the working group.

Earlier in the process, the FRA published an ANPRM that called for

four workshops, held January through March 1993. The ASLRA also

participated in all of those workshops.

In addition, several short line railroads participated directly in

both the workshops and the Working Group. All of the individual short

line railroads participating in the Working Group agreed to the

proposal.

Almost every change in the proposal will enhance safety. Some

provisions will reduce burdens, but in most cases the burden is

increased, and almost all of the burden falls on the railroads. In

those cases where the burden increased, the railroads participating in

the process arranged the additional burden so that it would have the

least adverse impact. Many of the newly prohibited track conditions are

rare or nonexistent. The impact on small entities was considered at

every step, and phase in periods were used to mitigate the effect on

them when they were affected by the crosstie standard and the new gage

standard for excepted track. There is no clear way to measure the net

effect of the proposal, although it seems likely the net benefit will

be positive. The RSAC process was intended to take rulemaking into

areas where data is sparse, and the end product, as might be expected,

is difficult to quantify.

Federalism Implications

This proposed rule has been analyzed according to the principles of

Executive Order 12612 (``Federalism''). It has been determined that

these proposed amendments to Part 213 do not have federalism

implications. As noted previously, the U.S. Supreme Court, in CSX v.

Easterwood, upheld Federal preemption of any state or local attempts to

regulate train speed. Nothing in this notice proposes to change that

relationship. Likewise, the proposed addition to Part 213's requirement

for vegetation maintenance near grade crossings is not intended to

preempt any similar existing state or local requirements. The

provisions that require railroads seeking to operate in Classes 8 and 9

to have a program addressing vandalism and trespassing are directed

only to the railroads, and not to state or local governments. If a

railroad is unable to provide an adequate program to address these

issues, it will not be allowed to operate at Classes 8 and 9 speeds.

For these reasons, the preparation of a Federalism Assessment is not

warranted.

Regulatory Flexibility Act

This notice contains a summary of an initial regulatory flexibility

analysis (IRFA) as required by the provisions of the Regulatory

Flexibility Act at 5 U.S.C. Secs. 601-612. FRA completed an IRFA as

part of an economic analysis of costs and benefits, and placed of copy

of the IRFA in the docket for this proceeding.

1. Why action by the agency is being considered

The Rail Safety Enforcement and Review Act of 1992, Public Law 102-

365, 106 Stat. 972 (September 3, 1992), later amended by the Federal

Railroad Safety Authorization Act of 1994, Public Law 103-440, 108

Stat. 4615 (November 2, 1994), requires FRA to revise the track safety

regulations contained in 49 CFR Part 213. Now codified at 49 U.S.C.

Sec. 20142, the amended statute requires:

``(a) Review of Existing Regulations.--Not later than March 3,

1993, the Secretary of Transpor

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