# Track Safety Standards; Miscellaneous Proposed Revisions

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## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** July 3, 1997
- **Citation:** 62 FR 36138

## Text

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).

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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A97-16663. Public record. Not legal advice.