# Track Safety Standards > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A98-15932 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** June 22, 1998 - **Citation:** 63 FR 33992 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A98-15932. Public record. Not legal advice.