Track Safety Standards

SUMMARY: FRA amends the Track Safety Standards to update and enhance

its track safety regulatory program. To address today's railroad

operating environment, these amendments present additional regulatory

requirements, including standards specifically addressing high speed

train operations. FRA issues 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 amendments reflect

recommendations submitted to FRA by the Railroad Safety Advisory

Committee. The provisions included in this notice become effective with

this rule. However, FRA anticipates that further amendments will be

added to address the use of Gage Restraint Measuring Systems.

DATES: Effective Date: This final rule is effective September 21, 1998.

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:

Introduction

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.

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.

Petitions for Rulemaking

In May, 1990, the Brotherhood of Maintenance of Way Employes (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.

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

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 constituted 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.

Participants in the workshops included representatives of major and

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

Association (ASLRA), 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

[[Page 33993]]

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 one workshop 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 (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 16, 1996 (see 61

FR 65959). Thus, a significant portion of the mandate of the Rail

Safety Enforcement and Review Act of 1992 calling for a general

revision of the Track Safety Standards already has become effective.

The Railroad Safety Advisory Committee and the Track Working Group

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

consensus-based 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. It's sponsor is the 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

Administrator and accepted by the RSAC to resolve.

Most of the text of this final rule was recommended to FRA by the

RSAC. The committee was tasked by the Administrator to formulate and

present to FRA recommendations for new regulations and revisions of

existing ones.

In accordance with established RSAC procedures, RSAC formed a Track

Working Group, comprised of approximately 30 representatives from

railroads, rail labor, trade associations, state government, track

equipment manufacturers, and FRA, to develop and draft a proposed rule

for the revision of Part 213. It met periodically over a span of six

months in 1996.

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. Two other sources were

the BMWE's petition and AAR proposals. 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.

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. As required by RSAC procedures, each provision in

the proposed rule had received unanimous approval by the members of the

Track Working Group. At the request of the BMWE, the RSAC agreed to

defer the vote on whether to recommend the proposed rule to the

Administrator to provide that organization additional time to inform

its members. At the time of the formal vote by mail on November 21,

1996, 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.

On July 3, 1997, FRA published a Notice of Proposed Rulemaking

(NPRM) which included substantially the same rule text and preamble

developed by the Track Working Group. See 62 FR 36138. In developing

the regulatory evaluation for the NPRM, FRA attempted to incorporate

additional data in the cost/benefit analysis beyond the impact data

provided by the Track Working Group. In the NPRM, FRA requested

additional relevant data to use in the regulatory evaluation for this

final rule, but parties who had access to relevant data did not respond

to that request.

Comments and Responses

The NPRM generated comments from 12 sources. Four of the

commenters, namely, the AAR, the BMWE, the ASLRA, and Amtrak, were

represented on the Track Working Group and helped draft the recommended

rule which became the basis for the NPRM. All four of those commenters

expressed support for the RSAC process.

The BMWE stated that it agrees with many of the revisions proposed

in the NPRM, but that the standards proposed

[[Page 33994]]

therein ``do not go far enough to ensure the integrity of the track

structure.'' The BMWE stated that ``several significant deficiencies''

led that group, as well as RSAC members representing other labor

organizations, to recommend to RSAC that the proposed rule as drafted

by the Track Working Group be returned to that group for further

consideration.

The AAR, in its comments to the docket, stated that it continues to

support the NPRM and the language drafted by the Track Working Group.

However, the AAR also added a request that should FRA revise any of the

proposed rule in direct response to comments by RSAC participants who

withdrew support of the rule drafted by the Track Working Group, then

FRA would also re-examine the positions the AAR originally expressed

about those issues. The AAR stated that its support of the proposed

rule reflects that organization's willingness to compromise some of its

positions in the interest in reaching consensus about the proposed rule

in the Track Working Group. Therefore, the AAR's general support of the

NPRM should not be misconstrued as agreement by the organization with

each and every provision of the NPRM.

FRA has not significantly changed the NPRM based on comments from

other RSAC participants who withdrew support for the rule proposed by

the Track Working Group. Thus the AAR's suggested revisions based on

that contingency are not examined in the ``Section By Section

Analysis'' portion of this final rule.

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. In

light of the evaluation of those procedures, as well as information

resulting from FRA's own research and development, this final rule

returns 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 and the new subsection

(Sec. 213.119) are premised on the concept that the regulations should

provide railroads with as much flexibility as safely feasible. The new

subsection 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

fully expects the railroad industry to take advantage of continuing

research initiatives to update and enhance their CWR procedures, and

cautions railroads not to develop less than acceptable CWR procedures

as a means to lessen the effect of regulatory oversight. FRA will

monitor the railroads' adherence to these procedures as well as the

overall effectiveness of the CWR programs.

While the CWR provision, as proposed, received support from some

commenters (the NTSB), others were critical of the new provision. The

AAR called it ``a classic case of overregulation'' and suggested that

the provision require track owners only to have CWR procedures and

training programs in effect and accessible to FRA. While it supported

the provision as a means to enhance track safety, the BMWE also advised

that the provision lacks a means to address railroads' non-compliance

with their own CWR programs. The ASLRA suggested that railroads should

have the option of excluding from their CWR plans any trackage over

which trains do not operate at speeds over 30 m.p.h. and which do not

exceed one million gross ton miles in traffic annually. The AAR also

stated that it generally supports the provision as drafted by the Track

Working Group and that its suggestions for changes were to be

considered only in the event FRA decides to revise the proposed

provision in response to recommendations of other RSAC participants

who, after helping to draft the recommended NPRM, withdrew support for

the recommendation. All three commenters who expressed negative

comments were active participants in the Track Working Group and helped

to draft the language which adds the provision for CWR in this final

rule.

Excepted Track

With some limitations, the excepted track regulation permits

railroads to designate track as ``excepted'' from compliance with

minimum safety requirements for roadbed, track geometry and track

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

regulations in 1982 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.

[[Page 33995]]

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 in yards or otherwise on

comparatively level terrain in areas where the likelihood was remote

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

The 1982 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 the ASLRA indicate

that between 8,000 and 9,000 miles of excepted track presently exist

nationwide.

Comments to the ANPRM, the NPRM, as well as some opinions expressed

within the Track Working Group, showed that many railroads favor

maintaining an excepted track provision in the Track Safety Standards.

They argued that accident and injury data do not support the notion

that trackage in ``excepted'' status presents any significant safety

hazard. FRA's data show that between 1990 and 1995, track-caused

derailments on excepted track caused three reportable injuries and one

release of hazardous materials. In commenting on the NPRM, the ASLRA

stated that, in a recent survey of short line railroads, 146 railroads

that reported having excepted track had 122 reportable accidents in a

five-year period from 1991 through 1995. Of those accidents, 87 were

track-related.

The ASLRA strenuously argued that short line railroads depend on

the excepted track 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. The ASLRA commented that the cost to short line railroads to

upgrade and maintain excepted track would exceed $230 million.

Elimination of the excepted track provision would cause the abandonment

of approximately 95 lines affecting 1,063 shippers who may be then

compelled to use highway transportation.

Approximately 65% of all reportable derailments on excepted track

from 1988 through the third quarter of 1995 were track-caused. Of

those, nearly 33% were attributed to wide gage as a result of defective

crossties or rail fasteners. Several commenters expressed approval of

some type of gage restriction. The BMWE suggested that the revised

provision should also address the condition and placement of ties and

fasteners, as well as switch maintenance and rail/joint bar defects.

The AAR commented that the gage restrictions proposed in the NPRM

should be eliminated. The AAR stated that there are situations where

wide gage is safe, for instance, in road crossings. In those cases,

pavement would have to be destroyed and replaced to correct wide gage

when the pavement would have restricted wheel position and prevented a

derailment. The AAR also stated that it recommends that the gage

restriction be eliminated only if FRA decides to revise the proposed

provision based on the comments of other RSAC participants who helped

draft the recommendations and then later withdrew support of them.

Otherwise, the AAR supports the NPRM as drafted by the Track Working

Group.

Because none of the commenters presented FRA with a compelling

reason to make further changes to the gage restrictions in the excepted

track provision, this final rule adopts the language as recommended by

the Track Working Group and as proposed in the NPRM. Under this final

rule, track owners must maintain gage to a 58\1/4\'' standard and

perform periodic switch inspections.

FRA and state inspectors have found instances where railroads have

taken advantage of the permissive language in the 1982 provision to

conduct operations in a manner not envisioned when FRA drafted 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. The BMWE and the NTSB suggested that

the revised provision include time limits for the use of this provision

over any segment of track. The final rule adopts the language as

proposed in the NPRM and requires railroads to provide FRA with

notification 10 days prior to removing track from excepted status.

The revision also changes the word ``revenue'' to ``occupied'' in

describing passenger trains prohibited from operating over excepted

track. This change codifies FRA's long-standing interpretation of the

1982 provision which allowed trains on excepted track to be occupied by

crews, work gangs, and other railroad employees attending to their job-

related duties. It is also designed to dispel the misconception by some

railroads that passengers could be hauled over excepted track as long

as they were not charged, and the railroad received no ``revenue,'' for

their transportation. The purpose of the passenger prohibition is to

safeguard railroad passengers; its purpose is not concerned with the

revenue-generating power of passenger service.

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 cannot prevent the

occurrence of some defects in track structures that are continually

changing in response to the loads imposed on them by traffic and

effects of weather. Many defects may not be detected even when the

track owner exercises reasonable care. Therefore, track owners should

be held responsible only for those defects about which they know or

should know. Today, even 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 later to see if the defect has been repaired. If it has not,

they may 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. Such a system would make

railroads responsible only for defects

[[Page 33996]]

FRA already has detected, which is clearly not a sufficient incentive

to comply.

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) and would have

been detected with the exercise of reasonable care, the defect's

existence constitutes constructive knowledge by the railroad and the

railroad is cited for a violation. FRA's reading of its ``knows or has

notice'' standard has been its long-standing enforcement policy and is

explained in FRA's Track Enforcement Manual.

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

a 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 or the railroad's opportunity to have

detected it under the required inspection schedule. 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).

The inherent weakness in such a proposal is that railroads will develop

differing internal requirements for track inspection and maintenance.

Some railroads may not be as vigilant as others in spotting defects or

potential defects. Track defects compromising safety may not be

discovered until the track fails, causing a derailment and possibly

injuries and death.

Neither the BMWE nor the AAR provided FRA with cost/benefit

information to support their respective requests.

The Track Working Group considered and rejected both proposals,

finding that the existing language, as it has been enforced to date,

strikes the best balance of all interests. Therefore, the NPRM proposed

to leave the standard of liability unchanged. In its comments on the

NPRM, the BMWE again proposed that the standard of liability be changed

to that of strict liability. According to the BMWE, the current

language encourages railroads to under-report track defects and offers

the railroads no disincentive from assigning railroad track inspectors

``overly-expansive inspection territories'' resulting in less thorough

and comprehensive track inspections.

In preparing this final rule, FRA weighed the BMWE comments, as

well as its own enforcement experience, against the consensus-based

recommendation of the Track Working Group which representatives of the

railroads, FRA, and labor developed. FRA has concluded that the Track

Working Group struck the right balance, and thus in this final rule,

railroads will continue to be held liable for track defects of which

they knew or had notice. Even if a railroad has not recorded those

defects, 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.

Moreover, the penalty provision now makes clear what has been the

law for many years, i.e., that anyone who makes a false report under

the safety laws is liable for criminal penalties under 49 U.S.C. 21311.

This should provide an additional deterrent to anyone who would

purposely under-report defects.

Tourist Railroads

The Track Safety Standards apply to only those tourist railroads

that operate on the general system. 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. The agency 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, FRA 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. Among the issues the working

group will examine is track safety. The findings of that group may or

may not lead to a recommendation by the RSAC that the Track Safety

Standards should be revised to apply to all tourist railroads. However,

if such a recommendation is the result, FRA may then consider

initiating a separate rulemaking to address that issue. The NTSB took

the opportunity of this proceeding to express its opinion that the

Track Safety Standards should apply to tourist railroads both on and

off the general system. Because many issues affecting tourist railroads

are still under consideration by FRA, this final rule includes no

changes to the Track Safety Standards that are directed specifically to

those railroads.

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 creates 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

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

[[Page 33997]]

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.

The Track Working Group could not reach consensus about how the

revised Track Safety Standards should address GRMS technology. The RSAC

therefore recommended that a small task group continue evaluating the

possibility of developing GRMS standards for broader application within

the industry. Nevertheless, some parties submitted comments to the NPRM

concerning the use of GRMS. The NTSB recommended that the revised

standards incorporate the use of advanced track inspection

technologies, such as track geometry cars, GRMS, light-weight loading

fixtures, and state-of-the-art rail inspection methods for internal

rail defects. In its comments to the NPRM, the BMWE reiterated its

position that GRMS technology be used in conjunction with current

inspection requirements. The AAR, in its comments, repeated its

position that the revised Track Safety Standards should allow alternate

inspection procedures that would permit railroads to use some

combination of geometry cars, measurement equipment and instrumentation

such as GRMS, hyrail inspections, and other means of inspecting in

place of the required visual inspections. At the publication of this

final rule, the task group continues to work to reconcile the

differences and reach a consensus on what type of GRMS provision would

be most effective. FRA, for its part, is still examining the points

made for and against incorporation of a GRMS provision and is not

prepared to resolve the issue at this time. However, FRA anticipates

coming to resolution in the near future. All of the relevant issues

appear to have been identified and discussed in this proceeding.

High Speed Rail Standards

The current Track Safety Standards include 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 final rule adds three new

classes of track that 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. The new subpart is intended to

function as ``stand alone'' regulations governing any track identified

as belonging to one of these higher classes. In other words, the track

owner needs to refer only to Subpart G for compliance with the Track

Safety Standards for track over which railroads operate trains at the

speeds associated with the high speed track classes. However, if that

same track does not meet the standards in Subpart G at any time, the

other subparts (A through F) apply.

These track standards constitute only one of several components

comprising a regulatory program permitting trains to travel at high

speeds. FRA also may address high speed issues in regulations outside

of Part 213, such as emergency preparedness, wheel conditions, braking

systems, and grade crossings. These track 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.

In developing this final rule, FRA sought out the best available

technical data about dynamic performance of vehicle/track systems to

devise safety standards that are practical to implement. The high speed

standards in this notice provide for the qualification of vehicles;

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

and inspection requirements for both automated and visual inspections.

While some of the sections in the new Subpart G are identical, or

nearly 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 have no

counterpart in the standards for the lower classes of track because

they address issues unique to the high speed environment. Other

sections are simply modifications of the requirements for the lower

track classes.

Comments to the new Subpart G proposed in the NPRM came from

Amtrak, the NTSB, Bombardier GEC Alsthom Consortium, Union Switch and

Signal, and the Director of Ground Transportation of the French

Ministere de l'Equipment des Transports et du Logement. The commenters

were generally supportive of the new standards, but they offered

suggestions for modifying some sections in the subpart. Their specific

comments are addressed in this notice under segment designated as

``Section by Section Analysis.''

A representative for the Florida Overland eXpress responded to the

NPRM with a request that FRA remove from the final rule reference to

Florida Overland eXpress's plans to operate trains at very high speeds.

Florida Overland eXpress petitioned FRA in 1996 for a Rule of

Particular Applicability for its proposed operation. Such a rule would

include a variety of railroad safety regulations, including track

safety regulations, that would apply only to the Florida Overland

eXpress. FRA issued a Notice of Rule of Particular Applicability,

published on December 12, 1997. See 62 FR 65478. Florida Overland

eXpress objected to a reference to that operation in the NPRM because

this rule of general applicability will not apply to its operation. FRA

agrees that the reference in the NPRM to the Florida Overland eXpress,

without explanation of its unique circumstances, may mislead others

into believing that this rule will apply to that operation. It will

not.

Following the closure of the comment period for the NPRM (September

15, 1997), the Volpe National Transportation Systems Center (VNTSC)

issued a working paper entitled ``Evaluation of Proposed High Speed

Track Surface Geometry Specification,'' dated December 1, 1997. The

working paper evaluated the response of different high speed locomotive

designs to track profile geometry variations. Because the VNTSC working

paper contained relevant and useful information for this final rule but

was not available at the time of the publication of the NPRM, FRA

placed the paper in the docket for this proceeding and issued a special

notice on December 12, 1997, inviting public comment on its content.

See 62 FR 65401. The comment period for the

[[Page 33998]]

VNTSC working paper expired on December 22, 1997. FRA received only one

response to the special notice. The AAR noted that it would not be able

to provide comment on the VNTSC working paper without knowing how FRA

would use the report to set the geometry standards for the high speed

classes of track.

Torch Cut Rails

Torch cutting rail, a practice that was widespread in the railroad

industry until a few years ago, is now used by most railroads only for

emergency repairs in Classes 3 through 5 track. 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. FRA

lacks reliable data on the number of existing torch cuts. The railroads

report 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.'' Nevertheless, torch cuts from years ago when the practice

was more prevalent still exist and are believed 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, the NPRM proposed that the

practice of torch-cutting rails in Classes 3 through 5 track should be

prohibited in the future except for emergency temporary repairs. The

NPRM further proposed that existing torch cuts in Class 3 track over

which regularly scheduled passenger trains operate should 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 must be

removed within two years of the effective date of this final rule, and

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

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, the NPRM

proposed that existing torch cuts in Classes 1 and 2 track be allowed

to remain.

In commenting on the NPRM, the NTSB suggested that torch cuts

should be prohibited and eliminated from all track in classes above

Class 1, and movement over torch cuts should be restricted to 10 m.p.h.

The BMWE commented that torch cutting should be prohibited in all

classes above Class 2, and that existing torch cuts in Class 2 track

should be removed within a reasonable time. The AAR commented that the

torch cut provision should simply prohibit torch cutting in Classes 3

through 5 track. However, the AAR further stated that it generally

supports the NPRM and offered this suggestion to be considered only in

the event FRA decides to change the proposed provision in accordance

with the comments of other RSAC participants who helped draft the

provision and then later withdrew support of the RSAC recommendations.

This final rule adopts the proposed rule as drafted by the Track

Working Group, approved by majority consensus of the RSAC, and proposed

in the NPRM. The comment by the NTSB, that torch cuts should be removed

from any track class above Class 1, is based upon the NTSB's

investigation of the 1983 Amtrak derailment in Texas. However, FRA's

analysis of the derailment indicates that the high alloy content of the

rail at the site of the accident played a larger part in causing the

derailment than did the torch cut. Therefore, FRA is not persuaded by

the NTSB's analysis. The BMWE offered no clear explanation of its

proposal to prohibit all torch cuts in track classes above Class 2.

Similarly, FRA was not persuaded by AAR's argument that accident

statistics fail to support a torch cut regulation that requires

anything more than a prohibition against any future torch cutting in

track classes above Class 3. FRA believes that existing torch cuts in

the higher classes of track may pose a danger of derailment.

Other Issues

Plant Railroads and Industrial Spurs

In general, FRA has elected not to exercise jurisdiction over the

safety of railroads that conduct their operations exclusively within an

industrial or military installation. FRA chose this self-imposed

limitation because 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 C.F.R. Part 209, Appendix A, which explains that

the track owner of any plant railroad trackage over which a general

system railroad operates is responsible for the condition of track used

by the general system railroad. With the entrance of a general system

railroad, the plant does not become part of the general system, but it

does lose some of its insularity as to that part of the track used by

the general system railroad.

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, as well as other installations (e.g., military

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 final rule leaves the

application section of the Track Safety Standards unchanged.

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.

[[Page 33999]]

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, increasing safety hazards and causing train

delays. 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 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.

Moreover, there are significant safety reasons for facilitating the

fastest transit of trains throughout the railroad system. For example,

the risk of releases of hazardous materials is reduced by minimizing

the time such shipments spend in transportation. It would be poor

public policy to allow local governments to attempt to lower their risk

by raising everyone's risk and by clogging the transportation system.

Railroads have strong economic motives to minimize the time shipments

spend in transportation, so public safety and employee safety are best

served by setting and enforcing the standards railroads must meet to

travel at particular speeds.

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, pedestrian safety, 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 warning

systems and through observance by the traveling 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.

FRA received no comments on this issue following a similar

discussion of the issue in the NPRM.

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' and pedestrians' 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. Projections for 1997 based upon nine months of

preliminary data show that 441 people were killed, and 1,525 suffered

serious injuries in grade crossing accidents. Second only to trespasser

fatalities as a leading cause of death in the railroad industry,

highway-rail collisions far out-number fatalities to railroad employees

and passengers.

In lengthy discussions about vegetation at grade crossings, the

Track Working 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.

The NPRM generated no comments concerning the issue of vegetation at

grade crossings. FRA agrees with the assessment reached by the Track

Working Group that the issue requires the judgment of experts in other

transportation arenas. Therefore, this final rule adds only one

requirement for railroads in maintaining vegetation. Under this rule,

railroads are required to clear vegetation away from signs and signals

on railroad rights-of-way at grade crossings. 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 to the traveling public. 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, nor is it

[[Page 34000]]

intended to dictate standards for surrounding landowners.

Because concern about this issue remains, the FRA Administrator has

recommended 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.

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 did not recommend the addition of metric standards in this

proceeding. Although the issue was raised in the NPRM, it generated no

comments. FRA concludes that the introduction of metric values into the

regulations is not appropriate at this time.

Section by Section Analysis--Track Classes 1-5

The Federal Track Safety Standards, until now, included only six

classes of track representing speeds up to 110 m.p.h. The regulations

applied to all of the classes. This final rule separates the classes of

track into two general categories: Classes 1 through 5 for speeds up to

90 m.p.h. (80 m.p.h. for freight) and Classes 6 through 9 for speeds

above 90 m.p.h. (80 m.p.h. for freight). Subparts A through F apply to

Classes 1 through 5, as they always have. However, the new Subpart G

applies exclusively to Classes 6 through 9. This separation of the

classes of track is designed for better ease of use. Owners of track

over which high speed trains operate need to refer only to Subpart G

for almost all of the relevant regulations. (The exceptions are

Sec. 213.2, Preemptive effect; Sec. 213.3, Application; and

Sec. 213.15, Penalties.) On the other hand, track owners over which

train speeds do not exceed 90 m.p.h. continue to refer to Subparts A

through .

Class 6 is included in the category for high speed track, governed

by Subpart G, because the safety issues associated with that class of

track more closely resemble those associated with the higher classes.

Section 213.1--Scope of the Part

Proposed rule: An 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

eliminates a mischaracterization of the standards by removing the

outdated descriptive ``initial.''

Comments: Comments received supported the proposed amendment.

Final rule: The section incorporates the change as proposed in the

NPRM and adds a sentence to distinguish the applicability of Subpart G

from the applicability of Subparts A through F. Subpart G applies to

track over which trains are operated at speeds in excess of those

permitted over Class 5 track, a maximum of 80 m.p.h. for freight trains

and 90 m.p.h. for passenger trains. Subpart G is designed to be mostly

comprehensive, so that a railroad operating at speeds above Class 5

maximum speeds may refer to Subpart G for all of the substantive track

safety requirements for high speed rail. Such a railroad needs to refer

to the earlier sections of the Track Safety Standards only for the

general provisions at Sec. 213.2 (preemptive effect), Sec. 213.3

(application), and Sec. 213.1 (Penalties). On the other hand, railroads

which never operate at speeds in excess of the maximum Class 5 speeds

need not refer to Subpart G at all.

The final rule also adds language to this section to state that

railroads are not restricted from adopting and enforcing more stringent

track safety requirements as long as they are not inconsistent with the

track safety standards in this Part. This statement is consistent with

the earlier statement that these regulations are minimum requirements.

Section 213.2--Preemptive Effect

Proposed rule: This section is added 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.

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.

Comments: Comments received supported the proposed amendment.

Final rule: The section is modified slightly so that the language

more closely corresponds to the language of the statute. See 49 U.S.C.

20106.

Section 213.3--Application

Proposed rule: This section was not proposed to be amended. The

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, a plant does not

become a general system railroad, subject to all of the attendant

safety requirements applied to such railroads, simply because a general

system railroad operates over a portion of the plant trackage.

Nevertheless, a plant owner is held liable for the condition of any

plant trackage over which a general system railroad operates. Under

this policy, FRA will not hold plant owners responsible for compliance

with ancillary track safety provisions, such as the requirements for

recordkeeping or inspection frequencies. However, FRA will judge the

safety of the plant railroad against the substantive safety

requirements in those standards to assess the need to invoke its

emergency order authority against the plant owner.

The Track Working Group advised that a reference in Part 213 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, including

those ancillary provisions, enforceable against thousands of plant

owners, at least to the extent general system railroads operate within

plant borders. Such a result would be more far-reaching than intended

by the RSAC.

Comments: One commenter suggested that the application of Part 213

be extended to cover standard gage tourist railroads which operate off

the general system and meet the FRA's test for insularity. This

commenter also suggested that the agency consider developing track

safety standards for non-standard gage tourist railroad operations.

[[Page 34001]]

Final rule: This section is amended to conform the discussion of

jurisdiction over rapid transit service to the statute. See 49 U.S.C.

20102. The statute has been amended since part 213 was issued, but

Sec. 213.3(b)(2) was never amended to conform to the statute. The Track

Safety Standards will still exclude urban area rapid transit systems

that are unconnected to the general system. This change is not intended

make the Track Safety Standards applicable to rapid transit whose only

connection to the general system is a switch permitting receipt of

shipments from the general system.

In response to concerns expressed by and about tourist railroads,

FRA proffered, and the RSAC accepted, a task to study tourist railroad

concerns. The RSAC has established a working group to perform the task.

It is comprised of agency and tourist railroad industry representatives

who are analyzing the industry's unique aspects and formulating

recommendations for appropriate regulation of that specialized

industry. Therefore, the NPRM proposed no changes in that regard.

While FRA does not think a reference to Appendix A to Part 209

would have the effect feared by the Track Working Group, FRA declines

to exercise its jurisdiction over plant railroads at this time because

the safety issues now presented on their track do not warrant the

allocation of agency resources that would be diverted from matters

presenting greater safety risks. The agency continues to have safety

jurisdiction over those railroads and may invoke its statutory

emergency authority if it deems that necessary in order to safeguard

anyone from the hazard of death or personal injury.

Section 213.4--Excepted Track

Proposed rule: The NPRM proposed 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,

the NPRM proposed to institute a requirement that gage must not exceed

of 58\1/4\'' on excepted track. This requirement would apply to the

actual gage measurement itself, and would not extend to the evaluation

of crossties and fasteners which provide the gage restraint. A

clarification was added to the inspection requirements on excepted

track which specifically reference turnout inspections required under

this section.

The NPRM also proposed to include a requirement that railroads

notify FRA at least 10 days before removing trackage from excepted

status. This provision is intended 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 NPRM included an edit to Sec. 213.4(e)(2) changing 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.

Comments: Comments received generally supported the proposed

amendments to the excepted track regulation. However, several

commenters proposed that additional requirements and restrictions

should be incorporated into the regulation. Proposals included a total

prohibition of hazardous materials shipments, additional restrictions

on where excepted track could be utilized, additional minimum safety

standards, and a time limit for length of time a track could remain in

excepted status.

Final rule: In preparing its recommended proposed rule, the Track

Working Group discussed at length the same requirements and

restrictions suggested for inclusion into this final rule by

commenters. The final rule includes additional regulatory control over

abuses of the excepted track provision which have been documented in

the past. The final rule also prescribes a minimum safety standard for

gage that addresses the major causal factor associated with track-

caused derailments on excepted track.

FRA rejected the suggestion that the provision should include a

prohibition of all hazardous material shipments. Many small short line

railroads who operate over excepted track haul hazardous materials on a

regular basis. A general prohibition would cause many of these

railroads to close operation, and the hazardous materials would be

hauled by trucks over public highways. Similarly, a restriction on the

length of time track may remain in excepted status, and a restriction

on where excepted track could be utilized, would place an undue burden

on many short line railroads who operate exclusively on excepted track.

Statistics show that 87 track-caused reportable accidents occurred on

8,000 to 9,000 miles of excepted track in five years. These numbers, in

FRA's judgment, do not justify implementing restrictions over-

burdensome to small railroads.

FRA considered implementing minimum safety standards, in addition

to the new gage and switch requirements. However, the ASLRA estimated

that the cost to short line railroads to improve excepted track to

Class 1 standards would cost the short line industry some $230 million.

FRA believes that this final rule provides needed additional measures

of safety for excepted track while maintaining the regulatory relief

the excepted track provision provides, but under more restrictive

conditional and operational requirements.

Section 213.5--Responsibility of Track Owners

Proposed rule: The NPRM proposed to change 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

[[Page 34002]]

assigned party becomes responsible, along with the track owner, for

compliance with Part 213.

The 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 subsection proposed in the NPRM, a track owner

could reassign 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 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 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.

The NPRM also proposed 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).

Comments: Comments received were supportive of these changes.

Final rule: Subsection (f) of this section is added to include in

the category of those responsible for compliance with the track

standards those who perform the function of complying with the

standards, not just the track owner. For example, this addition will

hold track maintenance contractors responsible for compliance. This is

not inconsistent with past enforcement and it conforms to the authority

given FRA by the statute. See 49 U.S.C. 21301 and 1 U.S.C. 1.

Paragraph (e) of this section is changed to correct a typographical

error in the NPRM. The correct cite for the Federal law which gives the

Surface Transportation Board authority to direct rail service is 49

U.S.C. 11123.

Section 213.7--Designation of Qualified Persons To Supervise Certain

Renewals and Inspect Track

Proposed rule: 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 recommended the creation of a new subsection (d) which

prescribes the manner in which persons not fully qualified as outlined

in subsections (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 subsection 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. A railroad

may use the examination to determine whether or not a person should be

allowed to authorize train movements over broken rails and pull-aparts.

However, the examination 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.

Comments: Comments generally supported the proposed amendments to

this section. One commenter argued that only those employees fully

qualified under Sec. 213.7 should be designated to authorize train

movements over broken rails and pull-aparts. FRA disagrees with this

statement. For the narrow purpose of temporarily authorizing train

movements over broken rails or pull aparts, a person does not need to

be trained in all of the remedial actions included in Part 213, as

outlined in Sec. 213.7.

Several commenters suggested that Sec. 213.7 should contain a

requirement for the requalification of employees designated to inspect

track or to supervise restorations or renewals. A regulation requiring

such requalification of designated persons would overlap the existing

regulation, as FRA has long held that the requirement to be

``qualified'' is a continuing requirement, not a static one, and it is

the responsibility of the track owner to assure that persons designated

under this section are qualified at all times. This mandate for

qualification is not periodic, it is continuing. FRA will address this

issue by issuing a technical bulletin containing ``good practice''

industry guidelines for the requalification of persons designated under

Sec. 213.7, as drafted by the Track Working Group.

Final rule: FRA believes that persons who are trained, examined,

and periodically re-examined on specific issues relating to the

singular function of passing trains over broken rails and pull-aparts

at restricted speed does not violate the intent of the Track Safety

Standards, nor does this practice compromise safety provided those

persons demonstrate to the track owner that they know and understand

the requirements on which they were examined.

FRA proposes to re-designate paragraph (d) in the NPRM as paragraph

(c) in the final rule. Similarly, paragraph (c) in the NPRM will become

paragraph

[[Page 34003]]

(d) in the final rule with a reference to ``persons not fully

qualified'' for the purpose of maintaining records of those

designations. These changes provide for a more orderly structure of the

requirements of this section and also recognize FRA's and the railroads

``need to know'' what persons are being designated under this new

paragraph for purposes of compliance with this part.

Section 213.9--Classes of Track: Operating Speed Limits

Proposed rule: The NPRM proposed to move Class 6 standards to

Subpart G, a new subpart which establishes track safety standards for

high speed rail operations. As proposed in the NPRM, the new subpart

would 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 recommended 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.

Comments: Comments received generally supported the proposed

amendment to this section. One commenter suggested that the provision

under Sec. 213.9(b) allowing operation for up to 30 days over track not

in compliance with Class 1 standards was too liberal, and this option

should only be allowed as an upper limit for track under emergency

repairs.

Final rule: FRA believes that the option provided the track owner

under subsection (b) of this section, to continue operations over track

not in full compliance with Class 1 standards, at Class 1 speeds for a

period of not more than 30 days, is appropriate, considering the many

types of defects that can occur and the various levels of risks

associated with these defects. The regulation requires that the person

designated under Sec. 213.7(a) who makes the determination to continue

operations at Class 1 speeds shall do so only after personally

evaluating the immediate circumstances and the associated risks

presented by the non-compliance condition, and then determining that

operations may safely continue.

However, this provision is not meant to supplant the remedial

actions for defective rails prescribed in Sec. 213.113. If a person

designated under Sec. 213.7 determines that tracks containing defective

rail may continue in use, the rail must be replaced or the remedial

action prescribed in the table in Sec. 213.113 must be initiated.

There are several minor editorial changes to this section. In

subsection (a), the reference to subsection (c) contained in the NPRM

was deleted in the final rule because there is no subsection (c) to

this section. The final rule also cross-references the maximum

allowable speed for excepted track in the Sec. 213.9(a) table

concerning ``Maximum Allowable Operating Speeds.''

Otherwise, this section as proposed, is adopted in this final rule.

In grouping Class 6 with Classes 7 through 9, FRA does not suggest, and

it would be inaccurate to infer, that Class 6 track or operation of

trains over Class 6 track at the speeds permitted is in any way

unconventional or unusual. Trains have been run at those speeds for

decades.

Section 213.11--Restoration or Renewal of Track Under Traffic

Conditions

Proposed rule: 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 the NPRM 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.

Comments: Comments received supported the proposed amendment.

Final rule: The section as proposed is adopted in this final rule.

Section 213.13--Measuring Track Not Under Load

Proposed rule: The proposed rule recommended no changes to this

section.

Comments: One commenter suggested that the phrase ``under a loaded

condition'' should be more clearly defined.

Final rule: FRA considers that the dynamic loading conditions

applied by train operations is implicit in the phrase ``under a loaded

condition'' and therefore the final rule is adopted as proposed by the

NPRM.

Section 213.15--Penalties

Proposed rule: The NPRM proposed no changes to this section. The

section covers all subparts to this part, including the new Subpart G.

Comments: One commenter advised FRA that Appendix B had not been

revised to reflect entries for the new Sec. 213.119 addressing

Continuous Welded Rail (CWR).

Final rule: The final rule changes this section in several ways.

The section is now entitled, ``Penalties'' rather than ``Civil

penalties'' because it now includes a provision for criminal penalties.

The authority for FRA to initiate criminal penalties is granted by the

statute at 49 U.S.C. 21311.

The section also adds language to indicate that ``person'' as used

in this section is defined by the statute at 1 U.S.C. 1 and includes,

but is not limited to, a railroad, manager, supervisor, official, agent

of the railroad, owner, manufacturer, lessor or lessee of railroad

equipment or track, independent contractor to the railroad.

The section also changes the maximum penalties FRA is authorized to

assess for violations of the provisions of this Part. The maximum

penalty is raised from $10,000 to $11,000 for violations, and from

$20,000 to $22,000 for willful violations. This change is included to

comply with the provisions of the Debt Collection Improvement Act of

1996 which requires Federal agencies to adjust civil monetary penalties

to counter inflation's effect of diminishing the impact of these

penalties. See Pub. L. 104-134, April 26, 1996. According to the Act,

the inflation adjustment is to be calculated by increasing the maximum

civil monetary penalty by the percentage that the Consumer Price Index

for the month of June, 1995, exceeds the Consumer Price Index for the

month of June of the last calendar year in which the amount of the

penalty was last set or adjusted. The initial adjustment, however, may

not exceed 10 percent. Hence, the maximum penalties for violations of

this Part are increased by 10 percent. In addition, the minimum civil

penalty amount shown in this section is changed from $250 to $500 to

conform with Rail Safety Enforcement and Review Act of 1992, codified

at 49 U.S.C. 21301.

In further compliance with the Debt Collection Improvement Act, FRA

reviewed existing penalties contained in Appendix B of Part 213. After

examination of those penalties and FRA's enforcement policies, FRA

decided that the existing penalties require no adjustment at this time.

The civil penalties shown in Appendix B of the NPRM did not include

penalties for CWR, torch cut rail, new provisions in excepted track or

Subpart G. The Appendix B in this final rule includes penalties for the

new provisions in the final rule. Because

[[Page 34004]]

FRA's civil penalties are statements of policy, notice and comment of

these changes were not required.

Section 213.17--Exemptions

Proposed rule: 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. Further, FRA is required by law to consider appropriately

suggested waiver requests and has adopted generally applicable

procedures for doing so in 49 CFR Part 211. Therefore, the NPRM

recommended that this section be left as currently written.

Comments: No comments received.

Final rule: The title of this section, as well as the language of

the section itself, are changed by the replacement of ``exemptions''

with ``waivers.'' This language change makes the section consistent

with the language contained in 49 U.S.C. 20103, as well as 49 CFR Part

211.

Section 213.19--Information Collection

Proposed rule: The addition of this section was not proposed in the

NPRM.

Comments: No comments were received concerning this addition.

Final rule: FRA adds this section to show which sections of this

part have been approved by the Office of Management and Budget (OMB)

for compliance with the Paperwork Reduction Act of 1995. See 44 U.S.C.

3501 et seq. The requirement for approval by OMB has been added since

the Track Safety Standards were first issued. While subsequent

revisions to the track standards have received OMB approval, those

approvals have not been reflected in the standards themselves.

Section 213.31--Scope

Proposed rule: The Track Working Group discussed this section and

recommended that it remain as currently written.

Comments: FRA received no comments.

Final rule: FRA agrees with the recommendation of the Track Working

Group and this section as proposed is adopted in this final rule.

Section 213.33--Drainage

Proposed rule: 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.'' The NPRM

proposed to follow an RSAC recommendation that the section be left

unchanged.

Comments: No comments received.

Final rule: The section as proposed is adopted in this final rule.

Section 213.37--Vegetation

Proposed rule: The NPRM proposed to add a phrase to subsection (b)

to include a 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 was not intended to be an attempt to dictate standards for

surrounding landowners. The additional language was intended only to

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

provide adequate visibility to the traveling public of railroad signs

and signals; it was 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.

Comments: Comments received supported the proposed amendment.

Final rule: The final rule includes one minor change to the rule

text of this section to correct an error regarding the effective date

for compliance with the change. In the NPRM, paragraphs (b)(1) and (2)

were both exempt from compliance for a period of one year following the

effective date of the rule. The requirement for controlling vegetation

along the right-of-way so that it does not obstruct the visibility of

railroad signs and signals, as outlined in paragraph (b)(1), has been a

requirement of the Track Safety Standards since their inception. The

final rule will clarify that only paragraph (b)(2), which was added to

enhance visibility to the traveling public of railroad signs and

signals at highway-rail crossings, will be exempt from compliance for

one year following the effective date of the rule.

Section 213.51--Scope

Proposed rule: The Track Working Group discussed this section and

recommended that it remain as currently written.

Comments: FRA received no comments.

Final rule: FRA agrees with the recommendation of the Track Working

Group and this section as proposed is adopted in this final rule.

Section 213.53--Gage

Proposed rule: The proposed rule recommended no changes to this

section.

Comments: No comments received.

Final rule: The final rule includes one minor editorial change to

this section. The section now cross-references the maximum allowable

gage for excepted track in the gage table under Sec. 213.53(b) which

was inadvertently omitted in the NPRM.

Section 213.55--Alinement

Proposed rule: The NPRM introduced a 31-foot chord requirement, in

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

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

from the Track Working Group, recommended this addition to control

transient short wavelength variations in alinement. This control was

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.

Comments: Comments received supported the proposed amendment.

Final rule: The section as proposed is adopted in this final rule.

Section 213.57--Curves; Elevation and Speed Limitations

Proposed rule: 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

[[Page 34005]]

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, the NPRM proposed to revise subsection (a) to limit the

amount of crosslevel 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 and Maintenance-of-way Association's (AREMA) 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 AREMA 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. (Note: FRA considers the terms

``unbalanced elevation'' and ``cant deficiency'' to be

interchangeable.) The present standards under paragraph (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 alinement

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 alinement 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'') provide 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 alinement 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-wavelength anomalies can

be covered by the introduction of a 31-foot chord to the alinement

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. Standard freight equipment, however, typically

does not 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.

The NPRM proposed 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.

Comments: Comments received supported the proposed amendments.

Final rule: FRA adds paragraph (g) to this section to afford track

owners or railroads operating above Class 5 speeds an option to qualify

equipment at cant deficiencies greater than four inches in lower track

classes. Track owners or railroads operating under the provisions of

Subpart G may exercise the option on lower track classes (Classes 1

through 5) that are contiguous with high speed territory without first

petitioning FRA for a waiver from compliance with the other provisions

of Sec. 213.57.

Under paragraph (g), a track owner or railroad operating under

Subpart G on track that is contiguous to lower speed track may request

FRA approval to operate at a higher level of cant deficiency using the

same procedures available under Sec. 213.329(c) and (d). The track

owner or railroad must submit to FRA for approval a test plan which

will determine through engineering analysis the safety limits for

lateral carbody accelerations which can be used as a surrogate measure

to determine the amount of wheel unloading under cant deficient

operation.

Upon FRA approval of the test plan, the track owner or railroad may

conduct incrementally increasing train speed test runs to demonstrate

that wheel unloading is within the prescribed safety limits. Once the

test is completed and FRA approves a level of cant deficient operation,

paragraph (g) requires geometry car inspections and acceleration

measurements to confirm the integrity of the vehicle/track interaction

on the curves.

The provision in paragraph (g) does not apply to track owners or

railroads which operate trains in only Classes 1 through 5. FRA must

consider other factors associated with track in Classes 1 through 5,

such as the likelihood of a decrease in overall track quality and an

absence of information generated through vehicle qualification testing

procedures as required under Sec. 213.345. Therefore, a track owner or

railroad wishing to operate in Classes 1 through

[[Page 34006]]

5 at cant deficiencies greater than four inches must petition FRA for a

waiver.

Section 213.59--Elevation of Curved Track; Runoff

Proposed rule: The Track Working Group discussed this section and

recommended that it remain as currently written.

Comments: FRA received no comments.

Final rule: FRA agrees with the recommendation of the Track Working

Group and this section as proposed is adopted in this final rule.

Sec. 213.63--Track Surface

Proposed rule: 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, the NPRM proposed

several changes to track surface requirements to better address current

knowledge of track/vehicle interaction.

The NPRM proposed 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. The NPRM proposed to remove that

term from the revised table.

The NPRM also proposed 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. The

NPRM proposed that the differences in crosslevel in spirals be included

in one parameter to simplify the table and correct the discrepancy that

currently exists. The NPRM also proposed 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.

The footnote identified by an asterisk inside the table 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 1 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 2 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.

Comments: Comments received supported the proposed amendments. One

commenter questioned the use of the terms ``variation'' and

``difference,'' and recommended the consistent use of one or the other,

but not both.

Final rule: The term ``variation'' only appears in the statement

behind the asterisk inside the track surface table. The term

``variation'' is used because this statement refers to the previous

warp standard for spirals which used the same term. In certain

locations, the prior standard for warp in spirals will be grandfathered

due to physical restrictions and therefore FRA believes the terms

should be consistent. In all other instances in this section, the term

``difference'' is used exclusively. The final rule makes one change in

the track surface table under the parameter described as the difference

in crosslevel between any two points less than 62 feet apart, or

commonly referred to as the ``warp'' parameter. The results of recent

track twist (warp) studies conducted at the Transportation Technology

Center (TTC), where three different vehicle types were tested to

determine their responses to crosslevel and combined crosslevel/

alinement perturbations on tangent and curved test zones, indicate that

a limit for warp of 2\1/4\ inches for Class 2 track would be more

appropriate than the proposed limit of 2\1/2\ inches by RSAC. The

report of the TTC testing was not available to the Track Working Group

when their recommendations were made.

Section 213.101--Scope

Proposed rule: The Track Working Group discussed this section and

recommended that it remain as currently written.

Comments: FRA received no comments.

Final rule: FRA agrees with the recommendation of the Track Working

Group and this section as proposed is adopted in this final rule.

Section 213.103--Ballast; General

Proposed rule: The Track Working Group discussed this section and

recommended that it remain as currently written.

Comments: FRA received no comments.

Final rule: FRA agrees with the recommendation of the Track Working

Group and this section as proposed is adopted in this final rule.

Section 213.109--Crossties

Proposed rule: The NPRM proposed 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 Track

Working 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, the NPRM proposed 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 was to strengthen the track structure to enable it

to better resist such forces.

[[Page 34007]]

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 were proposed to become

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

Under subsection (d), the NPRM proposed 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 would allow 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.

The NPRM also proposed 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 addressed this type of track

construction by requiring railroads to maintain gage, surface, and

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

and (iii).

Comments: Comments received supported the proposed amendments. One

commenter suggested that the GRMS technology be incorporated into this

section.

Final rule: As discussed earlier in the preamble to this final

rule, a separate task group continues to evaluate GRMS technology for

possible incorporation into the Track Safety Standards.

The final rule includes subsection (c) as it is currently written,

as well as subsection (d) to become effective two years after the

effective date of this final rule.

The section as proposed is adopted in this final rule with

renumbering of the subsections. Subsection (d) in the NPRM appears as

subsection (f) in the final rule, and subsection (e) in the NPRM

appears as subsection (g) in the final rule.

Section 213.113--Defective Rails

Proposed rule: The NPRM proposed 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 placed 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 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

established one or more mid-range defect sizes, between five percent

and 100 percent, each of which would require specific remedial actions.

In the proposed revised remedial action table, all longitudinal

defects were 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 was

eliminated and the size divisions were 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 was eliminated also for bolt hole cracks

and broken bases. The proposed revision also included 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.

The NPRM also proposed 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\ inches or more in depth and 8

inches 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 recommended 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.

The NPRM also proposed to make several substantive revisions to the

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

section. A new note ``A2'' was added to address the mid-range

transverse defect sizes which were 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.

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

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'' were revised to limit the operating

speed, following the application of joint 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, proposed a significant change to the current standards. This

revision addressed 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 is

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 joint 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.

[[Page 34008]]

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.

Comments: Comments received generally supported the proposed

amendments to this section. One commenter suggested that definitions

for ``bolt hole crack,'' ``defective weld,'' and ``head-web

separation'' should be added to subsection (b). This commenter also

suggested that remedial actions for certain rail defects, which are

expressed in terms of an ``either/or'' option, could be made less

ambiguous by bracketing those options.

One commenter suggested that a periodic re-examination of

``flattened rails'' should be required so that the severity and growth

rate of this rail defect can be monitored. This commenter also

suggested that ``shelled rail'' should be defined as a rail defect

which would require some specified remedial action.

One commenter argued that when a track owner voluntarily elects to

conduct a continuous search for internal defects on Class 1 and 2 track

where regulatory requirements for inspections of this type are non-

existent, any rail defects found should be subject to the requirements

of only remedial action B, regardless of the defect type or size of the

defect. The commenter argued that such a provision would ensure that

there is not a regulatory disincentive for voluntarily conducting

internal rail inspections on Class 1 and 2 track.

Another commenter suggested that FRA's definition of ``break out in

rail head'' should be more restrictive than the present version. This

commenter also suggested that the final rule should set parameters for

determining ``excessive rail wear'' in a manner similar to the methods

used to measure excessive wheel wear prescribed in the 49 CFR Part 215,

Railroad Freight Car Safety Standards.

Final rule: The Track Working Group discussed at length the issues

associated with ``flattened rail'' (localized collapsed head rail) and

``shelled rail.'' FRA and industry research indicates that these

occurrences are more accurately categorized as rail surface conditions,

not rail defects, as they do not in themselves cause service failure of

the rail.

FRA believes that the risk of detail fractures being masked by

``shelled rail'' conditions was appropriately addressed in the proposed

rule by specifying more restrictive inspection intervals and by

requiring specific remedial actions to be taken when surface conditions

such as ``shelled rail'' prevent a valid inspection for internal

defects. The proposed rule addresses the issue of ``flattened rail'' in

terms of a specified remedial action for those of a certain depth and

length. FRA believes that further monitoring of ``flattened rail''

conditions can be accomplished without prescribing regulations which

mandate inspection procedures beyond which already exist. FRA's rail

integrity research program will continue to study ``shelled rail'' and

``flattened rail'' conditions, and in the event that research indicates

additional regulation is necessary in the future, FRA will not hesitate

to do so.

The Track Working Group was unable to improve FRA's current

definition of a ``break out in rail head.'' The current definition,

when viewed in terms of the remedial action which it requires when met,

has been considered too liberal under certain circumstances, while

conversely, it has also been considered too conservative under other

circumstances. The circumstances primarily dictated by the type and

size of defect, along with the location of the defect in the rail. FRA

believes that under the current remedial action requirement, the

current definition for ``break out in rail head'' is adequate.

The issue of ``excessive rail wear'' continues to be evaluated by

FRA's rail integrity research program. FRA believes that insufficient

data exist at this time which would indicate that parameters for this

condition should be proposed as a minimum safety standard.

FRA believes that the remedial action tables and specifications in

this final rule better address the risks associated with rail failure.

These risks are primarily dependent upon defect type and size and

should not be dependent upon the manner or mechanism which reveals the

existence of the defect. FRA believes that providing special regulatory

relief for defects found during voluntary inspections for internal rail

defects would not be a prudent approach to take. However, in revising

the remedial action table, FRA has sought to provide enhanced

flexibility where warranted by safety considerations.

FRA agrees that additional definitions would be helpful, so this

final rule adds definitions for ``bolt hole crack,'' ``defective

weld,'' and ``head-web separation.'' FRA also agrees that bracketing

certain ``either/or'' remedial actions will clarify the intent of those

requirements.

With the exception of these minor changes, the rule is adopted as

proposed by the Track Working Group and endorsed by the RSAC.

Section 213.115--Rail End Mismatch

Proposed rule: The Track Working Group discussed this section and

recommended that it remain as currently written.

Comments: FRA received no comments.

Final rule: FRA agrees with the recommendation of the Track Working

Group and this section as proposed is adopted in this final rule.

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

Proposed rule: The NPRM proposed 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.

As proposed, the 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

[[Page 34009]]

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,

``desired rail installation temperature range'' 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 regulation, as proposed in the

NPRM, provides railroads with flexibility to establish the ``desired

rail installation temperature range'' based on the characteristics of

the specific territory 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 ASLRA to develop a generic set of CWR procedures to

apply to low speed/low tonnage Class 2 and Class 3 railroad operations.

Comments: Comments generally supported the proposed amendment. One

commenter questioned the need for certain railroads that only conduct

low speed/low tonnage operations to adopt written procedures addressing

CWR. Another commenter questioned FRA's enforceability of the proposed

new section.

Final rule: The details of these procedures are to be based on

research findings and sound engineering principles. FRA is committed to

working with ASLRA to develop a generic set of CWR procedures with wide

applicability for the spectrum of smaller railroads. FRA believes that

certain requirements contained in the generic procedures, such as a

requirement to operate at reduced speed following maintenance work

which disturbs the track, will not have an impact on a railroad that

normally only operates at 10 m.p.h. Other requirements of this generic

set of procedures would also be less burdensome due to the nature of

most low speed/low tonnage operations.

This new section is enforceable to the extent that CWR procedures

must be developed and implemented, and employees responsible for their

application must be trained on these procedures. In the proper exercise

of its enforcement discretion, the agency is unlikely to take

enforcement action against minor deviations from CWR procedures unless,

together with other violations, they are part of a larger problem.

Section 213.121--Rail Joints

Proposed rule: Under existing subsection (a), the phrase ``proper

design and dimension'' often has 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, the NPRM proposed to change the word ``proper'' to

``structurally sound'' in subsection (a).

In subsection (b), the NPRM proposed 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 change would make the rule conform

to sound practices.

The NPRM proposed to extend to Class 2 track the prohibition of

torch cutting bolt holes in rail. The reference to joint bars was

removed, the subject 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.

Comments: Comments generally supported the proposed amendments. One

commenter agreed that the term ``structurally sound'' is more

technically correct, but stated that the term provides no additional

guidance as to what joint bars are interchangeable with various rail

sections. Several commenters suggested that the prohibition on

reconfiguring joint bars with a torch should be extended to Class 2

track. Another commenter suggested that the term ``excessive'' should

be quantified.

Final rule: FRA believes the risks in the lower speed track classes

are minimal when a railroad torch cuts bolt holes in joint bars and

reconfigures joint bars with a torch. The most critical of joint bar

failures are those in which the bar cracks or breaks through the middle

two bolt holes. If this were to happen as a result of reconfiguring by

a torch, a regulation already exists which prohibits any cracks or

breaks in this area of the joint bar for any class of track.

FRA believes that the term ``excessive'' in the context of this

section should be left to the discretion of a qualified person based on

that person's evaluation of what risks may be associated with any

particular set of conditions. FRA agrees that additional guidance

should be provided for the interpretation of ``structurally sound''

joint bars and will work with the industry to develop and issue

guidelines in the form of a Technical Bulletin addressing the

interchange ability of joint bars between various rail sections. This

approach is similar to a recent recommendation issued by FRA's

Technical Resolution Committee.

The rule is adopted as proposed by the NPRM.

Section 213.122--Torch Cut Rail

Proposed rule: The NPRM proposed this new section to address the

proper

[[Page 34010]]

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, such as quickly returning a track to

service following a derailment or washout. These locations 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. Train speed on 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 final rule, while torch cuts in Class 4 track must be removed

within two years. Within one year of the effective date of this final

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.

Comments: Comments received generally supported the proposed

amendments. Several commenters suggested that torch cut rail ends be

prohibited in all but Class 1 track. One commenter also suggested that

existing torch cut rail ends be restricted to 10 m.p.h..

Final rule: FRA believes the risks associated with torch cut rail

ends in Class 2 track are minimal based on lower speeds and lower

impact loads. If rail defects were to develop as a result of torch cut

rail ends, requirements already exist which would address them. FRA

also believes that existing torch cut rail ends have survived the early

mortality rate which is associated with rails that fail due to poor

torch cutting practices, and therefore existing torch cuts do not

present a significant risk, given the low frequency of expected failure

and lower accident severity at Class 2 speeds.

The rule is adopted as proposed by the NPRM.

Section 213.123--Tie Plates

Proposed rule: The NPRM proposed 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.'' 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.

Comments: Comments supported the proposed amendment.

Final rule: The rule is adopted as proposed by the NPRM.

Section 213.127--Rail Fastening Systems

Proposed rule: The NPRM proposed 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 considered the current reference to qualified Federal or

State track inspectors and the definition of a qualified State track

inspector to be redundant, given the adoption of Part 212. Therefore,

the NPRM proposed 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.

Comments: Comments supported the proposed amendment. One commenter

suggested that the GRMS technology be incorporated into this section.

Final rule: As discussed earlier in the preamble to this final

rule, a separate task group continues to evaluate GRMS technology for

possible incorporation into the Track Safety Standards. The rule is

adopted as proposed by the NPRM.

Section 213.133--Turnouts and Track Crossings Generally

Proposed rule: The NPRM proposed 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

recommended 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 recommended

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.

The NPRM proposed to change subsection (b) to reflect proposals

presented by the BMWE and by the AAR and FRA. The RSAC recommended 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.

Comments: Comments supported the proposed amendments.

Final rule: The rule is adopted as proposed by the NPRM.

Section 213.135--Switches

Proposed rule: The NPRM proposed to revise subsection (b) to

consider the existence of reinforcing bars or straps on

[[Page 34011]]

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. The NPRM, therefore, proposed 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.''

The NPRM also proposed a new subsection (i) 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.

Comments: Comments generally supported the proposed amendments. One

commenter suggested that the term ``unusually chipped or worn'' be

quantified.

Final rule: FRA believes that the term ``unusually chipped or

worn'' in the context of this section should be left to the discretion

of a qualified person based on that person's evaluation of what risks

may be associated with any particular set of circumstances. The rule is

adopted as proposed by the NPRM.

Section 213.137--Frogs

Proposed rule: The NPRM proposed 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.

Comments: Comments received supported the proposed amendment.

Final rule: The rule is adopted as proposed by the NPRM.

Section 213.139--Spring Rail Frogs

Proposed rule: The proposed rule recommended no changes to this

section.

Comments: No comments were received.

Final rule: This final rule inserts the word ``compression'' for

that of the phrase ``a tension'' in subsection (d) to correct a

technical error in wording. In order for the wing rail to be held tight

against the point rail, the spring must be in compression and not in

tension.

Except for this minor change, the rule is adopted as proposed by

the NPRM.

Section 213.141--Self-Guarded Frogs

Proposed rule: The Track Working Group discussed this section and

recommended that it remain as currently written.

Comments: FRA received no comments.

Final rule: FRA agrees with the recommendation of the Track Working

Group and this section as proposed is adopted in this final rule.

Section 213.143--Frog Guard Rails and Guard Faces; Gage

Proposed rule: To facilitate an easier understanding of the

requirements contained in this section, the NPRM proposed to add a

diagram to illustrate the method for measuring guard check gage and

guard face gage. The proposal contained no substantive changes to this

section.

Comments: Comments supported the proposed amendment.

Final rule: The rule is adopted as proposed by the NPRM.

Section 213.201--Scope

Proposed rule: The Track Working Group discussed this section and

recommended that it remain as currently written.

Comments: FRA received no comments.

Final rule: FRA agrees with the recommendation of the Track Working

Group and this section as proposed is adopted in this final rule.

Section 213.205--Derails

Proposed rule: The NPRM proposed 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.

Comments: Comments supported the proposed amendments.

Final rule: The rule is adopted as proposed by the NPRM.

Section 213.231--Scope

Proposed rule: The Track Working Group discussed this section and

recommended that it remain as currently written.

Comments: FRA received no comments.

Final rule: FRA agrees with the recommendation of the Track Working

Group and this section as proposed is adopted in this final rule.

Section 213.233--Track Inspections

Proposed rule: The NPRM proposed 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 paragraphs (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

[[Page 34012]]

rather than the specific manner in which it was conducted. The NPRM

proposed to establish some guidelines for hyrail inspections conducted

in multiple track territory.

As a result, subsection (b), as proposed in the NPRM, 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.

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, the NPRM did not propose to change

the language in this subsection.

Comments: Comments generally supported the proposed amendments.

Several commenters suggested that the requirements that address

inspections in multiple track territory should be more restrictive.

Several commenters suggested that a maximum speed limit should be set

when performing inspections for compliance with this part, one of which

suggested a maximum speed of 15 m.p.h..

Final rule: FRA believes that the appropriate vehicle inspection

speed over a particular territory is subject to many variables, i.e.,

track condition, type of track construction, weather conditions, time

of day, as well as many others which may only be apparent to the

individual inspector at that moment in time. With this in mind, FRA

believes that the appropriate vehicle speed for any particular set of

conditions should be determined by the person performing the

inspection, including those performed in multiple track territory. The

final rule provides for the inspector's discretion as it involves

inspection speed and sight distance.

This final rule also changes this section by cross-referencing

excepted track in the Sec. 213.233(c) table for required inspection

frequency.

Section 213.235--Inspection of Switches, Track Crossings, and Lift Rail

Assemblies or Other Transition Devices on Moveable Bridges

Proposed rule: The NPRM proposed 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.

The NPRM proposed a second sentence to be 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

three-month period.'' The nature of this type of switch requires a

thorough inspection of the critical parts, some of which are non-

redundant. Thorough inspection 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.

Comments: Comments generally supported the proposed amendments. One

commenter suggested that all switch mechanisms should be operated

during inspections required under this section.

Final rule: FRA believes that a requirement to operate all switch

mechanisms on a monthly basis would be too burdensome on the industry,

especially in some geographical locations that are subject to snow,

ice, and freezing conditions for many months of the year.

The final rule includes several changes to this section. On

November 23, 1996, more than three weeks after the Track Working Group

had submitted its recommendations for revision of the Track Safety

Standards to the RSAC, an Amtrak passenger train derailed on the

moveable bridge over the Hackensack River in Secaucus, New Jersey. This

derailment was the result of a malfunctioning lift rail assembly which

provides the transition from the moveable span to the fixed span on the

bridge. Because of this derailment, FRA believes that transition

devices on moveable bridges should be addressed in the revised Track

Safety Standards.

Therefore, this final rule adds moveable bridge lift rail

assemblies and other transition devices to the inspection requirements

in this section. This section adds only a requirement to visually

inspect on foot; it is not intended to impose additional functional

requirements for bridge lift rail assemblies beyond what is already

required by the Track Safety Standards. However, FRA considers these

assemblies to be no less critical than switches or track crossings, and

they should be subject to monthly on-foot visual inspections by a

person qualified under Sec. 213.7.

In addition, this section is restructured in order to reference the

operation of specified switch operating mechanisms in a separate

subsection (b). This change is designed to emphasize the importance of

these non-redundant mechanisms.

Section 213.237--Inspection of Rail

Proposed rule: 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.

The NPRM proposed 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

[[Page 34013]]

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. The

NPRM proposed 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.

The NPRM also proposed 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, the NPRM

proposed 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.

The NPRM proposed 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.

The NPRM also proposed 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 continuously

search for internal rail defects, some with varying means of displaying

and monitoring search signals. A continuous search is intended to mean

an uninterrupted search by whatever technology is being used, so that

there are no segments of rail which are not tested. If the test is

interrupted, i.e., as a result of rail surface conditions which inhibit

the transmission or return of the signal, then the test over that

segment of rail may not be valid because it was not continuous.

Therefore, as proposed in the NPRM, a non-test is not defined in

absolute technical terms. Rather, the provision leaves this judgment to

the rail test equipment operator who is uniquely qualified on that

equipment.

As proposed in the NPRM, 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.

Comments: Comments supported the proposed amendments.

Final rule: The rule is adopted as proposed by the NPRM.

Section 213.239--Special Inspections

Proposed rule: The RSAC recommended no change to this section, and

likewise, the NPRM proposed no change to the language in the

regulation. However, the preamble of the NPRM provided an explanation

of agency policy interpreting the section.

Comments: One commenter referred to the Notice of Safety Advisory

97-1, issued by FRA on September 4, 1997. See 62 FR 46793. The

commenter recommended that the provisions contained in the advisory be

adopted as regulations under this section.

Because of a number of fairly recent train derailments caused by

unexpected track damage from moving water, FRA deemed it appropriate to

issue the safety advisory to provide railroads with recommended

procedures that reflect best industry practice for special track

inspections. The procedures include: (1) prompt notification of

dispatchers of expected bad weather; (2) limits on train speed on all

track subject to flood damage, following the issuance of a flash flood

warning, until special inspection can be performed; (3) identification

of bridges carrying Class 4 or higher track which are vulnerable to

flooding and over which passenger trains operate; (4) availability of

information about each bridge, such as identifying marks, for those who

may be called to perform a special inspection; (5) training programs

and refresher training for those who perform special inspections; and

(6) availability of a bridge maintenance or engineering employee to

assist the track inspectors in interpreting the inspectors' findings.

Final rule: The rule is adopted as proposed by the NPRM, and does

not incorporate the procedures outlined in the Notice of Safety

Advisory 97-1. As it stated in that advisory, FRA believes that this

section is necessarily general in nature, because it is not practical

to specify in a minimum safety standard all the conditions which could

trigger a special inspection, nor the manner in which any particular

special inspection should be conducted. Of course, all such inspections

should be conducted so as to effectively prevent derailments, and the

procedures included in the safety advisory are designed to aid

railroads in performing effective inspections.

Although this section contains a sample list of surprise events

that routinely occur in nature, FRA does not view this provision as

limited to only the occurrences listed or to only natural disasters.

The section addresses the need to inspect after ``other occurrences''

which include 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

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