[Federal Register Volume 77, Number 203 (Friday, October 19, 2012)]
[Proposed Rules]
[Pages 64249-64272]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25620]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

[Docket No. FRA-2011-0058, Notice No. 1]
RIN 2130-AC28


Track Safety Standards; Improving Rail Integrity

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing to amend the Federal Track Safety Standards 
to promote the safety of railroad operations by enhancing rail flaw 
detection processes. In particular, FRA is proposing minimum 
qualification requirements for rail flaw detection equipment operators, 
as well as revisions to requirements for effective rail inspection 
frequencies, rail flaw remedial actions, and rail inspection records. 
In addition, FRA is proposing to remove regulatory requirements 
concerning joint bar fracture reporting. This rulemaking is intended to 
implement section 403 of the Rail Safety Improvement Act of 2008 
(RSIA).

DATES: (1) Written comments must be received by December 18, 2012. 
Comments received after that date will be considered to the extent 
possible without incurring additional delay or expense.
    (2) FRA anticipates being able to resolve this rulemaking without a 
public, oral hearing. However if FRA receives a specific request for a 
public, oral hearing prior to November 19, 2012, one will be scheduled 
and FRA will publish a supplemental notice in the Federal Register to 
inform interested parties of the date, time, and location of any such 
hearing.

ADDRESSES: Comments: Comments related to this Docket No. FRA-2011-0058, 
Notice No. 1 may be submitted by any of the following methods:
     Federal eRulemaking Portal: Go to www.Regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, Room W12-140, 1200 New Jersey Avenue SE., Washington, 
DC 20590-0001.
     Hand Delivery: Docket Management Facility, U.S. Department 
of Transportation, West Building, Ground floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m. ET, Monday 
through Friday, except Federal holidays.
     Fax: 202-493-2251.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Please note that all comments received will be posted 
without change to www.Regulations.gov, including any personal 
information provided. Please see the discussion under the Privacy Act 
heading in the Supplementary Information section of this document.
    Docket: For access to the docket to read background documents or 
comments received, go to www.Regulations.gov at any time or visit the 
Docket Management Facility, U.S. Department of Transportation, West 
Building, Ground floor, Room

[[Page 64250]]

W12-140, 1200 New Jersey Avenue SE., Washington, DC between 9 a.m. and 
5 p.m. ET, Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Carlo Patrick, Staff Director, Office 
of Railroad Safety, FRA, 1200 New Jersey Avenue SE., Washington, DC 
20590 (telephone: 202-493-6399); or Elisabeth Galotto, Trial Attorney, 
Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., Washington, 
DC 20950 (telephone: 202-493-0270).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Rail Integrity Overview
    A. Derailment in 2001 near Nodaway, Iowa
    B. Derailment in 2006 near New Brighton, Pennsylvania
    C. Office of Inspector General Report: Enhancing the Federal 
Railroad Administration's Oversight of Track Safety Inspections, 
February 24, 2009
    D. General Factual Background on Rail Integrity
    E. Statutory Mandate To Conduct this Rulemaking
III. Overview of FRA's Railroad Safety Advisory Committee (RSAC)
IV. RSAC Track Safety Standards Working Group
V. Track Inspection Time Study
VI. Section-by-Section Analysis
VII. Regulatory Impact and Notices
    A. Executive Orders 12866 and 13563 and DOT Regulatory Policies 
and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Environmental Impact
    E. Federalism Implications
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Privacy Act Statement

I. Executive Summary

    The Track Safety Standards Working Group (Working Group) of FRA's 
Railroad Safety Advisory Committee (RSAC) was formed on February 22, 
2006. On October 27, 2007, the Working Group formed two subcommittees: 
the Rail Integrity Task Force (RITF) and the Concrete Crosstie Task 
Force. The RITF was tasked to review the reuse of plug rail and the 
requirements for internal rail flaw inspections. The RITF met 11 times 
between November 2007 and April 2010. On September 23, 2010 and 
December 14, 2010, and the RSAC voted to approve the Working Group's 
recommended text and adopt it as their recommendation to FRA. The RSAC 
recommendation formed the basis of this NPRM.
    This NPRM proposes requirements related to the following subject 
areas: defective rails, the inspection of rail, qualified operators, 
and inspection records. The NPRM also addresses the mandate of section 
403 of the Rail Safety Improvement Act of 2008, and removes the joint 
bar fracture report requirement. The following is a brief overview of 
the proposal organized by the subject area:
     Defective Rails
    FRA is proposing to provide railroads with a four-hour period in 
which to verify that a suspected defect exists in the rail section. The 
primary purpose of the four-hour deferred-verification option is to 
assist the railroads in improving detector car utilization and 
production, increase the opportunity to detect larger defects, and 
ensure that all of the rail the detector car travels over while in 
service is inspected. Additionally, FRA proposes revisions to the 
remedial action table in areas such as transverse defects, longitudinal 
weld defects, and crushed head defects.

 Inspection of Rail

    Currently, Class 4 and 5 track, as well as Class 3 track over which 
passenger trains operate, are required to be tested for internal rail 
defects at least once every accumulation of 40 million gross tons (mgt) 
or once a year (whichever time is shorter). Class 3 track over which 
passenger trains do not operate are required to be tested at least once 
every accumulation of 30 mgt or once per year (whichever time is 
longer). When this standard was drafted, railroads were already 
initiating and implementing the development of a performance-based risk 
management concept for determination of rail inspection frequency that 
is often referred to as the ``self-adaptive scheduling method.'' Under 
this method, inspection frequency is established based annually on 
several factors, including the total detected defect rate per test, the 
rate of service failures between tests, and the accumulated tonnage 
between tests. The railroads then utilize this information to generate 
and maintain a service failure performance target.
    The proposed changes in this NPRM seek to codify standard industry 
good practices. The NPRM proposes to require railroads to maintain 
service failure rates of no more than 0.1 service failure per year per 
mile of track for all Class 4 and 5 track; no more than 0.09 service 
failure per year per mile of track for all Class 3, 4, and 5 track that 
carries regularly-scheduled passenger trains or is a hazardous material 
route; and no more than 0.08 service failure per year per mile of track 
for all Class 3, 4, and 5 track that carries regularly-scheduled 
passenger trains and is a hazardous material route.
    The NPRM also proposes that internal rail inspections on Class 4 
and 5 track, or Class 3 track with regularly-scheduled passenger trains 
or that is a hazardous materials route, not exceed a time interval of 
370 days between inspections or a tonnage interval of 30 million gross 
tons (mgt) between inspections, whichever is shorter. Internal rail 
inspections on Class 3 track without regularly-scheduled passenger 
trains and that is not a hazardous materials route must be inspected at 
least once each calendar year, with no more than 18 months between 
inspections, or at least once every 30 mgt, whichever interval is 
longer, with the additional provision that inspections cannot be more 
than 5 years apart.

 Qualified Operators

    FRA proposes to add a new provision requiring that each provider of 
rail flaw detection have a documented training program to ensure that a 
flaw detection equipment operator is qualified to operate each of the 
various types of equipment currently utilized in the industry for which 
he or she is assigned to operate.

 Removing the Requirement of a Joint Bar Fracture Report

    This NPRM proposes removing the requirement that railroads generate 
a Joint Bar Fracture Report (Fracture Report) for every cracked or 
broken continuous welded rail (CWR) joint bar that the track owner 
discovers during the course of an inspection. The RSAC Working Group 
ultimately determined that the reports were providing little useful 
research data to prevent future failures of CWR joint bars. Instead, 
the Group recommended that a new study be conducted to determine what 
conditions lead to CWR joint bar failures and include a description of 
the overall condition of the track in the vicinity of the failed 
joint(s); photographic evidence of the failed joint, track geometry 
(gage, alignment, profile, cross-level) at the joint location; and the 
maintenance history at the joint location.

 Inspection Records

    FRA proposes to require that the railroad's rail inspection records 
include the date of inspection, track identification and milepost for 
each location tested, type of defect found and size if not removed 
prior to traffic, and initial remedial action as required by Sec.  
213.113. FRA also proposes that all tracks that do not receive a valid

[[Page 64251]]

inspection are documented in the railroad rail inspection records.

 Section 403 of the RSIA

    On October 16, 2008, the RSIA (Pub. L. 110-432, Division A) was 
enacted. Section 403(a) of the RSIA required the Secretary to conduct a 
study of track issues, known as the Track Inspection Time Study 
(Study). The Study was to determine whether track inspection intervals 
needed to be amended; whether track remedial action requirements needed 
to be amended; whether different track inspection and repair priorities 
and methods were required; and whether the speed of track inspection 
vehicles should be regulated. As part of the study, section 403(b) 
instructed the Secretary to consider ``the most current rail flaw, rail 
defect growth, rail fatigue, and other relevant track- or rail-related 
research and studies,'' as well as new inspection technologies, and 
National Transportation Safety Board (NTSB) and FRA accident 
information. The study was completed and presented to Congress on May 
2, 2011. Section 403(c) of the RSIA further provides that FRA prescribe 
regulations based on the results of the Study two years after its 
completion.
    On August 16, 2011, RSAC accepted RSAC task 11-02, which was 
generated in response to the RSIA and to address the recommendations of 
the Study. After several meetings, the Association of American 
Railroads (AAR) together with the Brotherhood of Maintenance of Way 
Employes Division (BMWED) stated that FRA had met its obligations under 
section 403(c) of the RSIA through its rulemakings on vehicle/track 
interaction (VTI), concrete crossties, and the proposals contained in 
this NPRM related to rail integrity. They also stated that additional 
action on RSAC task 11-02 was unnecessary and recommended that the task 
should be closed. FRA took the proposal under advisement after the 
February meeting and conducted its own analysis as to the fulfillment 
of the mandates under section 403. FRA concluded that these statutory 
obligations were being fulfilled and on April 13, 2012, the Working 
Group approved a proposal to conclude RSAC task 11-02. On April 26, 
2012, the RSAC concluded that FRA's recent and ongoing rulemakings were 
sufficiently addressing the statutorily-mandated topics and that no 
additional work by the RSAC was necessary. Thus, the full RSAC approved 
the proposal and closed RSAC task 11-02.

 Economic Impact

    The bulk of the proposed regulation revises FRA's Track Safety 
Standards by codifying current industry good practices. In analyzing 
the economic impacts of the proposed rule, FRA does not believe that 
any existing operation will be adversely affected by these changes, nor 
does FRA believe that the changes will induce any costs.
    Through its regulatory evaluation, FRA has explained what the 
likely benefits for this proposed rule would be, and has provided a 
cost-benefit analysis. FRA anticipates that this rulemaking would 
enhance the current Track Safety Standards by allocating more time to 
rail inspections, increasing the opportunity to detect larger defects 
sooner, providing assurance that qualified operators are inspecting the 
rail, and causing inspection records to be updated with more useful 
information. The main benefit associated with this proposed rule is 
derived from granting the railroads a four-hour window to verify some 
defects found in a rail inspection. Without the additional time to 
verify a defect, railroads currently must stop their inspection anytime 
a suspect defect is identified, and then resume their inspection after 
the defect is verified. The defects subject to the proposed deferred 
verification allowance are usually considered less likely to cause 
immediate rail failure, and require less restrictive remedial action. 
The additional time permits railroads to avoid the cost of paying their 
internal inspection crews or renting a rail car flaw detector an 
additional half day, saving the industry $8,400 per day. FRA believes 
the value of the anticipated benefits would easily justify the cost of 
implementing the rule as proposed.

       Table E1--Total Discounted Net Benefits for 20-Year Period
------------------------------------------------------------------------
                                                  Discount factor
                                         -------------------------------
                                             7 percent       3 percent
------------------------------------------------------------------------
Four Hour Inspection Window.............     $34,754,935     $46,982,768
Net Benefit.............................      34,754,935      46,982,768
------------------------------------------------------------------------

    The rule's total net benefits are estimated to be about $61.3 
million over a 20-year period. The benefits are approximately $47.0 
million discounted at a 3 percent rate, or about $34.8 million, 
discounted at a 7 percent rate. FRA believes that such improvements 
would more than likely result from the adoption of the proposed rule by 
the railroad industry.

 II. Rail Integrity Overview

A. Derailment in 2001 Near Nodaway, Iowa

    On March 17, 2001, the California Zephyr, a National Railroad 
Passenger Corporation (Amtrak) passenger train carrying 257 passengers 
and crew members, derailed near Nodaway, Iowa. According to the NTSB, 
sixteen cars decoupled from the two locomotives and eleven cars went 
off the rails. Seventy-eight people were injured and one person died 
from the accident. See NTSB/RAB-02-01.
    The NTSB discovered a broken rail at the point of derailment. The 
broken pieces of rail were reassembled at the scene, and it was 
determined that they came from a 15\1/2\-foot section of rail that had 
been installed as replacement rail, or ``plug rail,'' at this location 
in February, 2001. The replacement had been made because, during a 
routine scan of the existing rail on February 13, 2001, the Burlington 
Northern and Santa Fe Railway (now BNSF Railway Company or BNSF) 
discovered internal defects that could possibly hinder the rail's 
effectiveness. A short section of the continuous welded rail that 
contained the defects was removed, and a piece of replacement rail was 
inserted. However, the plug rail did not receive an ultrasonic 
inspection before or after installation.
    During the course of the accident investigation, the NTSB could not 
reliably determine the source of the plug rail. While differing 
accounts were given concerning the origin of the rail prior to its 
installation in the track, the replacement rail would most likely have 
been rail which was removed from another track location for reuse. 
Analysis of the rail found that the rail failed due to fatigue 
initiating from cracks associated with the precipitation of internal 
hydrogen. If the rail had been ultrasonically inspected prior to its 
reuse, it is likely that the defects could have been identified and 
that section of rail might not have been used as plug rail.
    As a result of its investigation of the Nodaway, Iowa, railroad 
accident, the NTSB recommended that FRA require railroads to conduct 
ultrasonic or other appropriate inspections to ensure that rail used to 
replace defective segments of existing rail is free from internal 
defects. See NTSB Recommendation--02-5.

[[Page 64252]]

B. Derailment in 2006 Near New Brighton, Pennsylvania

    On October 20, 2006, Norfolk Southern Railway Company (NS) train 
68QB119 derailed while crossing the Beaver River railroad bridge in New 
Brighton, Pennsylvania. The train was pulling eighty-three tank cars 
loaded with denatured ethanol, a flammable liquid. Twenty-three of the 
tank cars derailed near the east end of the bridge, causing several of 
the cars to fall into the Beaver River. Twenty of the derailed cars 
released their loads of ethanol, which subsequently ignited and burned 
for forty-eight hours. Some of the unburned ethanol liquid was released 
into the river and the surrounding soil. Homes and businesses within a 
seven-block area of New Brighton and in an area adjacent to the 
accident had to be evacuated for days. While no injuries or fatalities 
resulted from the accident, NS estimated economic and environmental 
damages to be $5.8 million. See NTSB/RAB-08-9 through 12.
    The NTSB determined that the probable cause of the derailment was 
an undetected internal rail defect identified to be a detail fracture. 
The NTSB also noted that insufficient regulation regarding internal 
rail inspection may have contributed to the accident.
    This accident demonstrates the potential for rail failure with 
subsequent derailment if a railroad's internal rail defect detection 
process fails to detect an internal rail flaw. This accident also 
indicates a need for adequate requirements that will ensure rail 
inspection and maintenance programs identify and remove rail with 
internal defects before they reach critical size and result in 
catastrophic rail failures.

C. Office of Inspector General Report: Enhancing the Federal Railroad 
Administration's Oversight of Track Safety Inspections

    On February 24, 2009, the Office of Inspector General (OIG) for the 
Department of Transportation (DOT) issued a report presenting the 
results of its audit of FRA's oversight of track-related safety issues. 
The report made two findings. First, the OIG found that FRA's safety 
regulations for internal rail flaw testing did not require the 
railroads to report the specific track locations, such as milepost 
numbers or track miles that were tested during these types of 
inspections. Second, the OIG found that FRA's inspection data systems 
did not provide adequate information for determining the extent to 
which FRA's track inspectors have reviewed the railroads' records for 
internal rail flaw testing and visual track inspections to assess 
compliance with safety regulations. The OIG recommended that FRA revise 
its track safety regulations for internal rail flaw testing to require 
railroads to report track locations covered during internal rail flaw 
testing, and that FRA develop specific inspection activity codes for 
FRA inspectors to use to report on whether the record reviews FRA 
inspectors conduct were for internal rail flaw testing or visual track 
inspections. Enhancing the Federal Railroad Administration's Oversight 
of Track Safety Inspections, Department of Transportation, Office of 
Inspector General, CR-2009-038, February 24, 2009.

D. General Factual Background on Rail Integrity \1\
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    \1\ This section is primarily based on information from two 
sources: Progress in Rail Integrity Research, DOT/FRA/Ord-01/18, D. 
Jeong 2001; and I. H. H. A. Guidelines to Best Practices for Heavy 
Haul Railway Operations; Infrastructure Construction and Maintenance 
Issues, Section 4.3.1 Rail Defect Detection and Technologies, Carlo 
M. Patrick, R. Mark Havira, Gregory A. Garcia, Library of Congress 
Control No. 2009926418, 2009.
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    The single most important asset to the railroad industry is its 
rail infrastructure, and historically the primary concern of the 
railroad companies is the probability of rail flaw development, broken 
rails, and subsequent derailments. This has resulted in railroads 
improving their rail maintenance practices, purchasing more wear-
resistant rail, improving flaw-detection technologies, and increasing 
rail inspection frequencies in an effort to prevent rail defect 
development. The direct cost of an undetected rail failure is the 
difference between the cost of replacing the rail failure on an 
emergency basis, and the cost of the organized replacement of detected 
defects. However, a rail defect that goes undetected and results in a 
train derailment can cause considerable additional costs such as 
excessive service interruption, extensive traffic rerouting, 
environmental damage, and potential injury and loss of life.
    To maximize the life of rail, railroads must accept a certain rate 
of defect development. This results in the railroad relying on regular 
rail inspection cycles, and strategically renewing rail that is 
obviously showing evidence of fatigue. The development of internal rail 
defects is an inevitable consequence of the accumulation and effects of 
fatigue under repeated loading. The challenge for the railroad industry 
is to avoid the occurrence of rail service failure due to the presence 
of an undetected defect. Rail service failures are expensive to repair 
and can lead to costly service disruptions and possibly derailments.
    The effectiveness of a rail inspection program depends on the test 
equipment being properly designed and capable of reliably detecting 
rail defects of a certain size and orientation, while also ensuring 
that the test frequencies correspond to the growth rate of critical 
defects. The objective of a rail inspection program is to reduce the 
annual costs resulting from broken rails, which involve several 
variables.
    The predominant factor that determines the risk of rail failure is 
the rate of development of internal flaws. Internal rail flaws have a 
period of origin and a period often referred to as slow crack growth 
life. The risk is introduced when internal flaws remain undetected 
during their growth to a critical size. This occurs when the period 
between when the crack develops to a detectable size is significantly 
shorter than the required test interval.
    In practice, the growth rate of rail defects is considered highly 
inconsistent and unpredictable. Rail flaw detection in conjunction with 
railroad operations often presents some specific problems. This is a 
result of high traffic volumes that load the rail and accelerate defect 
growth, while at the same time decreasing the time available for rail 
inspection. Excessive wheel loading can result in stresses to the rail 
that can increase defect growth rates. Consequently, heavy axle loading 
can lead to rail surface fatigue that may prevent detection of an 
underlying rail flaw by the test equipment. Most railroads attempt to 
control risk by monitoring test reliability through an evaluation 
process of fatigue service failures that occur soon after testing, and 
by comparing the ratio of service failures or broken rails to detected 
rail defects.
    The tonnage required to influence defect development is also 
considered difficult to predict; however, once initiated, transverse 
defect development is influenced by tonnage. Rapid growth rates can 
also be associated with rail where high-tensile residual stresses are 
present in the railhead and in CWR in lower temperature ranges where 
the rail is in high longitudinal tension.
    It is common for railroads to control risk by monitoring the 
occurrence of both detected and service defects. For U.S. railroads, 
risk is typically evaluated to warrant adjustment of test frequencies. 
The railroads attempt to control the potential of service failure by 
testing more frequently.

[[Page 64253]]

    In general, the approach in conducting rail integrity research is 
focused to confirm whether rail defects can be detected by periodic 
inspection before they grow large enough to cause a rail failure. In 
the context of rails, damage tolerance is the capability of the rail to 
resist failure and continue to operate safely with damage (i.e., rail 
defects). This implies that a rail containing a crack or defect is 
weaker than a normal rail, and that the rail's strength decreases as 
the defect grows. As growth continues, the applied stresses will 
eventually exceed the rail's strength and cause a failure. Such 
information can be used to establish guidelines for determining the 
appropriate frequency of rail inspections to mitigate the risk of rail 
failure from undetected defects.
    Current detection methods that are performed in the railroad 
industry utilize various types of processes with human involvement in 
the interpretation of the test data. These include the:
     Portable test process, which consists of an operator 
pushing a test device over the rail at a walking pace while visually 
interpreting the test data;
     Start/stop process, where a vehicle-based flaw detection 
system tests at a slow speed (normally not exceeding 20 mph) gathering 
data that is presented to the operator on a test monitor for 
interpretation;
     Chase car process, which consists of a lead test vehicle 
performing the flaw detection process in advance of a verification 
chase car; and
     Continuous test process, which consists of operating a 
high-speed, vehicle-based test system non-stop along a designated 
route, analyzing the test data at a centralized location, and 
subsequently verifying suspect defect locations.
    The main technologies utilized for non-destructive testing on U.S. 
railroads are the ultrasonic and induction methods. Ultrasonic 
technology is the primary technology used, and induction technology is 
currently used as a complimentary system. As with any non-destructive 
test method, these technologies are susceptible to physical limitations 
that allow poor rail head surface conditions to negatively influence 
the detection of rail flaws. The predominant types of these poor rail 
head surface conditions are shells, engine driver burns, spalling, 
flaking, corrugation, and head checking. Other conditions that are 
encountered include heavy lubrication or debris on the rail head.
    Induction testing requires the introduction of a high-level, direct 
current into the top of the rail and establishing a magnetic field 
around the rail head. An induction sensor unit is then passed through 
the magnetic field. The presence of a rail flaw will result in a 
distortion of the current flow, and it is this distortion of the 
magnetic field that is detected by the search unit.
    Ultrasonics can be briefly described as sound waves, or vibrations, 
that propagate at a frequency that is above the range of human hearing, 
normally above a range of 20,000 Hz, or cycles per second. The range 
normally utilized during current flaw detection operations is 2.25 MHz 
(million cycles per second) to 5.0 MHz. Ultrasonic waves are generated 
into the rail by piezo-electric transducers that can be placed at 
various angles with respect to the rail surface. The ultrasonic waves 
produced by these transducers normally scan the entire rail head and 
web, as well as the portion of the base directly beneath the web. 
Internal rail defects represent a discontinuity in the steel material 
that constitutes the rail. This discontinuity acts as a reflector to 
the ultrasonic waves, resulting in a portion of the wave being 
reflected back to the respective transducer. These conditions include 
rail head surface conditions, internal or visible rail flaws, weld 
upset/finish, or known reflectors within the rail geometry such as 
drillings or rail ends. The information is then processed by the test 
system and recorded in the permanent test data record. Interpretation 
of the reflected signal is the responsibility of the test system 
operator.
    Railroads have always inspected track visually to detect rail 
failures, and have been using crack-detection devices in rail-test 
vehicles since the 1930s. Meanwhile, trends in the railroad industry 
have been to increase traffic density and average axle loads. Current 
rail integrity research recognizes and addresses the need to review and 
update rail inspection strategies and subsequent preventive measures. 
This would include the frequency interval of rail inspection, remedial 
action for identified rail defects, and improvements to the performance 
of the detection process.
    FRA has sponsored research related to railroad safety for several 
decades. One part of this research program is focused on rail 
integrity. The general objectives of FRA rail integrity research have 
been to improve railroad safety by reducing rail failures and the 
associated risks of train derailment, and to do so more efficiently 
through new maintenance practices that increase rail service life. 
Brief descriptions of the studies conducted by FRA focus on four 
different areas: Analysis of rail defects; residual stresses in rail; 
strategies for rail testing; and other areas related to rail integrity, 
which include advances in nondestructive inspection techniques and 
feasibility of advanced materials for rail, rail lubrication, rail 
grinding, and wear. Moreover, rail integrity research is an ongoing 
effort, and will continue as annual tonnages and average axle loads 
increase on the nation's railroads.
    Due to the limitations of current technology to detect internal 
flaws beneath surface conditions and in the base flange area, FRA's 
research has been focusing on other rail flaw detection technologies. 
One laser-based ultrasonic rail defect detection prototype, which is 
being developed by the University of California-San Diego under an FRA 
Office of Research and Development grant, has produced encouraging 
results in ongoing field testing. The project goal is to develop a rail 
defect detection system that provides better defect detection 
reliability and a higher inspection speed than is currently achievable. 
The primary target is the detection of transverse defects in the rail 
head. The method is based on ultrasonic guided waves, which can travel 
below surface discontinuities, hence minimizing the masking effect of 
transverse cracks by surface shelling. The inspection speed can be 
improved greatly also because guided waves run long distances before 
attenuating.
    Non-destructive test systems perform optimally on perfect test 
specimens. However, rail in track is affected by repeated wheel loading 
that results in the plastic deformation of the rail running surface 
that can create undesirable surface conditions as described previously. 
These conditions can influence the development of rail flaws. These 
conditions can also affect the technologies currently utilized for flaw 
detection by limiting their detection capabilities. Therefore, it is 
important that emerging technology development continue, in an effort 
to alleviate the impact of adverse rail surface conditions.

E. Statutory Mandate To Conduct This Rulemaking

    The first Federal Track Safety Standards (Standards) were published 
on October 20, 1971, following the enactment of the Federal Railroad 
Safety Act of 1970, Public Law 91-458, 84 Stat. 971 (October 16, 1970), 
in which Congress granted to FRA comprehensive authority over ``all 
areas of railroad safety.'' See 36 FR 20336. FRA envisioned the new 
Standards to be an evolving set of safety requirements

[[Page 64254]]

subject to continuous revision allowing the regulations to keep pace 
with industry innovations and agency research and development. The most 
comprehensive revision of the Standards resulted from the Rail Safety 
Enforcement and Review Act of 1992, Public Law 102-365, 106 Stat. 972 
(Sept. 3, 1992), later amended by the Federal Railroad Safety 
Authorization Act of 1994, Public Law 103-440, 108 Stat. 4615 (Nov. 2, 
1994). The amended statute is codified at 49 U.S.C. 20142 and required 
the Secretary of Transportation (Secretary) to review and then revise 
the Standards, which are contained in 49 CFR part 213. The Secretary 
has delegated such statutory responsibilities to the Administrator of 
FRA. See 49 CFR 1.49. FRA carried out this review on behalf of the 
Secretary, which resulted in FRA issuing a final rule amending the 
Standards in 1998. See 63 FR 34029, June 22, 1998; 63 FR 54078, Oct. 8, 
1998.
    Pursuant to 49 U.S.C. 20103, the Secretary may prescribe 
regulations as necessary in any area of railroad safety. As described 
in the next section, FRA began its examination of rail integrity issues 
through RSAC on October 27, 2007. Then, on October 16, 2008, the RSIA 
was enacted. As previously noted, section 403(a) of the RSIA required 
the Secretary to conduct a study of track issues known as the Track 
Inspection Time Study (Study). In doing so, section 403(b) required the 
Secretary to consider ``the most current rail flaw, rail defect growth, 
rail fatigue, and other relevant track- or rail-related research and 
studies'' as part of the Study. The Study was completed and submitted 
to Congress on May 2, 2011. Section 403(c) also required the Secretary 
to promulgate regulations based on the results of the study. As 
delegated by the Secretary, see 49 CFR 1.49, FRA utilized its advisory 
committee, RSAC and its Rail Integrity Task Force, to help develop the 
information necessary to fulfill the RSIA's mandates in this area.
    FRA notes that section 403 of the RSIA contains one additional 
mandate, which FRA has already fulfilled, promulgating regulations for 
concrete crossties. On April 1, 2011, FRA published a final rule on 
concrete crosstie regulations per this mandate in section 403(d). That 
final rule specifies requirements for effective concrete crossties, for 
rail fastening systems connected to concrete crossties, and for 
automated inspections of track constructed with concrete crossties. See 
76 FR 18073. FRA received two petitions for reconsideration in response 
to that final rule, and responded to them by final rule published on 
September 9, 2011. See 76 FR 55819.

III. Overview of FRA's Railroad Safety Advisory Committee (RSAC)

    In March 1996, FRA established RSAC, which provides a forum for 
developing consensus recommendations to the Administrator of FRA on 
rulemakings and other safety program issues. RSAC includes 
representation from all of the agency's major stakeholders, including 
railroads, labor organizations, suppliers and manufacturers, and other 
interested parties. An alphabetical list of RSAC members follows:

AAR;
American Association of Private Railroad Car Owners;
American Association of State Highway and Transportation Officials 
(AASHTO);
American Chemistry Council;
American Petrochemical Institute;
American Public Transportation Association (APTA);
American Short Line and Regional Railroad Association (ASLRRA);
American Train Dispatchers Association;
Amtrak;
Association of Railway Museums;
Association of State Rail Safety Managers (ASRSM);
BMWED;
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Railroad Signalmen (BRS);
Chlorine Institute;
Federal Transit Administration;*
Fertilizer Institute;
High Speed Ground Transportation Association;
Institute of Makers of Explosives;
International Association of Machinists and Aerospace Workers;
International Brotherhood of Electrical Workers;
Labor Council for Latin American Advancement;*
League of Railway Industry Women;*
National Association of Railroad Passengers;
National Association of Railway Business Women;*
National Conference of Firemen & Oilers;
National Railroad Construction and Maintenance Association;
NTSB;*
Railway Supply Institute;
Safe Travel America;
Secretaria de Comunicaciones y Transporte;*
Sheet Metal Workers International Association;
Tourist Railway Association Inc.;
Transport Canada;*
Transport Workers Union of America;
Transportation Communications International Union/BRC;
Transportation Security Administration; and
United Transportation Union (UTU).

*Indicates associate, non-voting membership.

    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If the 
task is accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. A working group may establish one or more 
task forces to develop facts and options on a particular aspect of a 
given task. The task force then provides that information to the 
working group for consideration.
    If a working group comes to a unanimous consensus on 
recommendations for action, the package is presented to the full RSAC 
for a vote. If the proposal is accepted by a simple majority of RSAC, 
the proposal is formally recommended to FRA. FRA then determines what 
action to take on the recommendation. Because FRA staff members play an 
active role at the working group level in discussing the issues and 
options and in drafting the language of the consensus proposal, FRA is 
often favorably inclined toward the RSAC recommendation.
    However, FRA is in no way bound to follow the recommendation, and 
the agency exercises its independent judgment on whether a recommended 
rule achieves the agency's regulatory goals, is soundly supported, and 
is in accordance with policy and legal requirements. Often, FRA varies 
in some respects from the RSAC recommendation in developing the actual 
regulatory proposal or final rule. Any such variations would be noted 
and explained in the rulemaking document issued by FRA. However, to the 
maximum extent practicable, FRA utilizes RSAC to provide consensus 
recommendations with respect to both proposed and final agency action. 
If RSAC is unable to reach consensus on a recommendation for action, 
the task is withdrawn and FRA determines the best course of action.

IV. RSAC Track Safety Standards Working Group

    The Track Safety Standards Working Group (Working Group) was formed 
on February 22, 2006. On October 27, 2007, the Working Group formed two

[[Page 64255]]

subcommittees: the Rail Integrity Task Force (RITF) and the Concrete 
Crosstie Task Force. Principally in response to NTSB recommendation R-
02-05,\2\ the task statement description for the RITF was to review the 
controls applied to the reuse of plug rail and ensure a common 
understanding within the regulated community concerning requirements 
for internal rail flaw inspections.
---------------------------------------------------------------------------

    \2\ After the accident in Nodaway, the NTSB recommended that FRA 
``[r]equire railroads to conduct ultrasonic or other appropriate 
inspections to ensure that rail used to replace defective segments 
of existing rail is free from internal defects.'' NTSB Safety 
Recommendation R-02-5, dated March 5, 2002.
---------------------------------------------------------------------------

    However, after the New Brighton accident, and in response to NTSB 
recommendations R-08-9, R-8-10, and R-08-11,\3\ the RITF was given a 
second task on September 10, 2008, which directed the group to do the 
following: (1) Evaluate factors that can and should be included in 
determining the frequency of internal rail flaw testing and develop a 
methodology for taking those factors into consideration with respect to 
mandatory testing intervals; (2) determine whether the quality and 
consistency of internal rail flaw testing can be improved and how; (3) 
determine whether adjustments to current remedial action criteria are 
warranted; and (4) evaluate the effect of rail head wear, surface 
conditions and other relevant factors on the acquisition and 
interpretation of internal rail flaw test results.
---------------------------------------------------------------------------

    \3\ After the New Brighton accident, the NTSB issued three 
additional safety recommendations dated May 22, 2008: (1) FRA should 
``[r]eview all railroads' internal rail defect detection and require 
changes to those procedures as necessary to eliminate exception to 
the requirement for an uninterrupted, continuous search for rail 
defects.'' R-08-9; (2) FRA should ``[r]equire railroads to develop 
rail inspection and maintenance programs based on damage-tolerance 
principles, and approve those programs. Include in the requirement 
that railroads demonstrate how their programs will identify and 
remove internal defects before they reach critical size and result 
in catastrophic rail failures. Each program should take into 
account, at a minimum, accumulated tonnage, track geometry, rail 
surface conditions, rail head wear, rail steel specifications, track 
support, residual stresses in the rail, rail defect growth rates, 
and temperature differentials.'' R-08-10; and (3) FRA should 
``[r]equire that railroads use methods that accurately measure rail 
head wear to ensure that deformation of the head does not affect the 
accuracy of the measurements.'' R-08-11.
---------------------------------------------------------------------------

    The RITF met on November 28-29, 2007; February 13-14, 2008; April 
15-16, 2008; July 8-9, 2008; September 16-17, 2008; February 3-4, 2009; 
June 16-17, 2009; October 29-30, 2009; January 20-21, 2010; March 9-11, 
2010; and April 20, 2010. The RITF's findings were reported to the 
Working Group for approval on July 28-30, 2010. The Working Group 
reached a consensus on the majority of the RITF's work and forwarded 
proposals to the full RSAC on September 23, 2010 and December 14, 2010. 
The RSAC voted to approve the Working Group's recommended text, which 
provided the basis for this NPRM.
    In addition to FRA staff, the members of the Working Group include 
the following:
     AAR, including the Transportation Technology Center, Inc., 
and members from BNSF, Canadian National Railway (CN), Canadian Pacific 
Railway (CP), CSX Transportation, Inc., The Kansas City Southern 
Railway Company (KCS), NS, and Union Pacific Railroad Company (UP);
     Amtrak;
     APTA, including members from Northeast Illinois Regional 
Commuter Railroad Corporation (Metra), Long Island Rail Road (LIRR), 
and Southeastern Pennsylvania Transportation Authority (SEPTA);
     ASLRRA (representing short line and regional railroads);
     BLET;
     BMWED;
     BRS;
     John A. Volpe National Transportation Systems Center 
(Volpe Center)
     NTSB; and
     UTU.
    FRA worked closely with RSAC in developing its recommendations and 
believes that RSAC has effectively addressed rail inspection safety 
issues regarding the frequency of inspection, rail defects, remedial 
action, and operator qualification. FRA has greatly benefited from the 
open, informed exchange of information during the meetings. There is a 
general consensus among railroads, rail labor organizations, State 
safety managers, and FRA concerning the primary principles set forth in 
this NPRM. FRA believes that the expertise possessed by RSAC 
representatives enhances the value of the recommendations, and FRA has 
made every effort to incorporate them in this proposed rule.
    Nevertheless, the Working Group was unable to reach consensus on 
one item that FRA has elected to include in this NPRM. The Working 
Group could not reach consensus on the definition of ``segment'' 
length, which FRA proposes to be utilized in a new performance-based 
test frequency determination in Sec.  213.237, ``Inspection of Rail,'' 
as discussed below.

V. Track Inspection Time Study

    As noted previously, section 403(a) of the RSIA required the 
Secretary to conduct a study of track issues. The Study was to 
determine whether track inspection intervals needed to be amended; 
whether track remedial action requirements needed to be amended; 
whether different track inspection and repair priorities and methods 
were required; and whether the speed of track inspection vehicles 
should be more specifically regulated. In conducting the Study, section 
403(b) instructed the Secretary to consider ``the most current rail 
flaw, rail defect growth, rail fatigue, and other relevant track- or 
rail-related research and studies,'' as well as new inspection 
technologies, and NTSB and FRA accident information. The Study was 
completed and presented to Congress on May 2, 2011. Section 403(c) 
further provided that FRA prescribe regulations based on the results of 
the Study two years after its completion.
    On August 16, 2011, RSAC accepted task 11-02, which was generated 
in response to the RSIA and to address the recommendations of the 
Study. Specifically, the purpose of the task was ``[t]o consider 
specific improvements to the Track Safety Standards or other responsive 
actions to the Track Inspection Time Study required by Sec.  403 (a) 
through (c) of the RSIA and other relevant studies and resources.'' The 
first meeting of the Working Group assigned to the task occurred on 
October 20, 2011, and a second meeting was held on December 20, 2011. 
At the third meeting on February 7-8, 2012, the AAR together with the 
BMWED stated that FRA had met its obligations under section 403(c) of 
the RSIA through its rulemakings on vehicle/track interaction (VTI), 
concrete crossties, and the proposals contained in this NPRM on rail 
integrity. They also stated that additional action on RSAC task 11-02 
was unnecessary and recommended that the task should be closed. FRA 
took the proposal under advisement after the February meeting and 
conducted its own analysis as to the fulfillment of the mandates under 
section 403. FRA concluded that these statutory obligations were being 
fulfilled and on April 13, 2012, the Working Group approved a proposal 
to conclude RSAC task 11-02. On April 26, 2012, the full RSAC approved 
the proposal and closed RSAC task 11-02. The recommendation approved by 
the full RSAC is described below.
    In determining whether regulations were necessary based on the 
results of the Study, RSAC examined the Study's four issues for 
improving the track inspection process:
     Expanding the use of automated inspections;
     Developing additional training requirements for track 
inspectors;

[[Page 64256]]

     Considering a maximum inspection speed for track 
inspection vehicles; and
     Influencing safety culture through a safety reporting 
system.
    The Study's first recommendation was that FRA consider expanding 
the use of automated inspections to improve inspection effectiveness. 
Specifically, the Study cited two specific track defects that are more 
difficult to detect through visual track inspection and could benefit 
from the use of automated inspection: rail seat abrasion (RSA) and 
torch cut bolt holes. Through discussion among the affected parties, it 
was determined that these areas of concern already had been covered 
under previous rulemaking and regulations. The Concrete Crossties final 
rule published on April 1, 2011, new Sec.  213.234, ``Automated 
inspection of track constructed with concrete crossties,'' specifically 
employs the use of automated inspection ``to measure for rail seat 
deterioration.'' In addition, torch cut bolt holes have been prohibited 
on track classes 2 and above since 1999, which was codified in 
Sec. Sec.  213.121(g) and 213.351(f), and they are easily identifiable 
through the rail flaw detection technology currently in use. Thus, the 
RSAC concluded that additional regulations to find such defects would 
be unnecessary.
    Outside of these two specific defects, the RSAC concluded that the 
instant NPRM would also be revising automated inspection standards in 
other areas, such as ultrasonic testing. For example, this NPRM 
proposes changing the ultrasonic testing of rail from a standard based 
on time and tonnage to one based on self-adaptive performance goals. 
Thus, the full RSAC concluded that the use of automated inspection has 
been sufficiently expanded in the areas that are most ideally suited 
for development at this point. While FRA and RSAC noted that they may 
wish to make changes to the automated inspection standards in the 
future, FRA and RSAC nevertheless maintained that the changes stated 
above sufficiently satisfy the RSIA's mandate.
    However, RSAC concurred with FRA, BMWED and AAR that it was 
important to ensure that any type of report generated from the 
automated inspection of track, regardless of whether it is mandated by 
regulation or voluntarily utilized by a railroad, be made available to 
track inspectors. Therefore, in this NPRM, FRA is issuing policy 
guidance to encourage track owners and railroads to provide the 
information from their automated track inspections in a usable format 
to those persons designated as fully qualified under the Track Safety 
Standards and assigned to inspect or repair the track over which an 
automated inspection is made. This guidance is as follows:

    When automated track inspection methods are used by the track 
owner, FRA recommends that the information from that inspection be 
provided or made readily available to those persons designated as 
fully qualified under CFR 213.7 and assigned to inspect or repair 
the track over which the automated inspection was made.

    The second recommendation the Study addressed was whether FRA 
should develop additional training requirements for track inspectors. 
RSAC found that it was unnecessary to generate additional training 
standards under RSAC task 11-02 for two reasons. First, the instant 
NPRM proposes to create a new Sec.  213.238 to address an area of 
training that requires new standards. Proposed Sec.  213.238 defines a 
qualified operator of rail flaw detection equipment and requires that 
each provider of rail flaw detection service have a documented training 
program to ensure that a rail flaw detection equipment operator is 
qualified to operate each of the various types of equipment currently 
utilized in the industry for which he or she is assigned, and that 
proper training is provided in the use of newly-developed technologies. 
Second, the recently published NPRM on Training, Qualification, and 
Oversight for Safety-Related Railroad Employees, 77 FR 6412 (proposed 
Feb. 7, 2012) (to be codified at 49 CFR parts 214, 232, and 243), 
proposes to require that employers develop and submit for FRA review a 
program detailing how they will train their track inspectors. As 
proposed in the NPRM, employees charged with the inspection of track or 
railroad equipment are considered safety-related railroad employees 
that each employer must train and qualify. The proposed formal training 
for employees responsible for inspecting track and railroad equipment 
is expected to cover all aspects of their duties related to complying 
with the Federal standards. FRA would expect that the training programs 
and courses for such employees would include techniques for identifying 
defective conditions and would address what sort of immediate remedial 
actions need to be initiated to correct critical safety defects that 
are known to contribute to derailments, accidents, incidents, or 
injuries. Id., at 6415. The RSAC found that new requirements for the 
training of track inspectors were being adequately addressed by this 
proposed NPRM on employee training standards, and thus did not believe 
additional action was currently necessary in this area.
    The third recommendation of the Study addressed whether track hi-
rail inspection speed should be specified. The Study concluded that 
specifying limits to hi-rail inspection speeds could be 
``counterproductive.'' With the currently-available data in this area, 
the RSAC concurred with the Study's recommendation, and determined that 
no further action needed to be taken in this area at this time. The 
RSAC found that the existing reliance on the ``inspector's discretion'' 
as noted in Sec.  213.233, should generally govern track inspection 
speed. FRA notes that this point will be emphasized in the next 
publication of FRA's Track Safety Standards Compliance Manual. FRA also 
makes clear that, in accordance with Sec.  213.233, if a vehicle is 
used for visual inspection, the speed of the vehicle may not be more 
than 5 m.p.h. when passing over track crossings and turnouts.
    Finally, the last recommendation of the Study addressed ways to 
enhance the track safety culture of railroads through programs such as 
a safety reporting system, like the Confidential Close Call Reporting 
System currently piloted by FRA. The RSAC was aware that the Risk 
Reduction Working Group was in the process of developing 
recommendations for railroads to develop risk reduction programs, which 
should incorporate many safety concerns in this area. Therefore, the 
RSAC concluded that additional, overlapping discussion was unnecessary 
given the specific concurrent focus of the Risk Reduction Working 
Group.
    FRA notes that, in addition to addressing the Study's 
recommendations, RSAC task 11-02 also incorporated other goals Congress 
had for the Study, which are described in section 403(a), such as 
reviewing track inspection intervals and remedial action requirements, 
as well as track inspection and repair priorities. The RSAC concluded 
that FRA's recent and ongoing rulemakings are sufficiently addressing 
these areas and that no additional work is currently necessary. 
Specifically, the instant rulemaking is intended to amend inspection 
intervals to reflect a new performance-based inspection program, revise 
the remedial action table for rail, and alter inspection and repair 
priorities involving internal rail testing and defects such as a 
crushed head and defective weld. The Concrete Crossties final rule also 
established new inspection methods and intervals requiring automated 
inspection, as well as new remedial actions for exceptions that can be 
field-verified within 48 hours. Finally, in addition to other 
requirements, the

[[Page 64257]]

Vehicle/Track Interaction Safety Standards (VTI) rulemaking, Vehicle/
Track Interaction Safety Standards; High-Speed and High Cant Deficiency 
Operations, 75 FR 25928 (proposed May 10, 2010) (to be codified at 49 
CFR parts 213 and 238), is addressing track geometry, inspection, and 
VTI safety requirements for high speed operations and operations at 
high cant deficiency over any track class.
    Therefore, the RSAC recommended and FRA subsequently concluded that 
additional work on any of these areas would be unnecessary at this 
time, given the recent and ongoing work of the RSAC and FRA. FRA 
believes that its recent and ongoing rulemakings sufficiently address 
the statutorily-mandated topics in section 403 and that no additional 
work by the RSAC was currently necessary.

VI. Section-by-Section Analysis

Section 213.3 Application

    FRA proposes to modify paragraph (b) to clarify the exclusion of 
track located inside a plant railroad's property from the application 
of this part. In this paragraph, ``plant railroad'' means a type of 
operation that has traditionally been excluded from the application of 
FRA regulations because it is not part of the general railroad system 
of transportation. In the past, FRA has not defined the term ``plant 
railroad'' in other regulations that it has issued because FRA assumed 
that its Statement of Agency Policy Concerning Enforcement of the 
Federal Railroad Safety Laws, The Extent and Exercise of FRA's Safety 
Jurisdiction, 49 CFR part 209, Appendix A (FRA's Policy Statement or 
the Policy Statement) provided sufficient clarification as to the 
definition of that term. However, it has come to FRA's attention that 
certain rail operations believed that they met the characteristics of a 
plant railroad, as set forth in the Policy Statement, when, in fact, 
their rail operations were part of the general railroad system of 
transportation (general system) and therefore did not meet the 
definition of a plant railroad. FRA would like to avoid any confusion 
as to what types of rail operations qualify as plant railroads. FRA 
would also like to save interested persons the time and effort needed 
to cross-reference and review FRA's Policy Statement to determine 
whether a certain operation qualifies as a plant railroad. 
Consequently, FRA has decided to define the term ``plant railroad'' in 
this part 213.
    The proposed definition would clarify that when an entity operates 
a locomotive to move rail cars in service for other entities, rather 
than solely for its own purposes or industrial processes, the services 
become public in nature. Such public services represent the interchange 
of goods, which characterizes operation on the general system. As a 
result, even if a plant railroad moves rail cars for entities other 
than itself solely on its property, the rail operations will likely be 
subject to FRA's safety jurisdiction because those rail operations 
bring plant track into the general system.
    The proposed definition of the term ``plant railroad'' is 
consistent with FRA's longstanding policy that it will exercise its 
safety jurisdiction over a rail operation that moves rail cars for 
entities other than itself because those movements bring the track over 
which the entity is operating into the general system. See 49 CFR part 
209, Appendix A. Indeed, FRA's Policy Statement provides that 
``operations by the plant railroad indicating it [i]s moving cars on * 
* * trackage for other than its own purposes (e.g., moving cars to 
neighboring industries for hire)'' brings plant track into the general 
system and thereby subjects it to FRA's safety jurisdiction. 49 CFR 
part 209, Appendix A. Additionally, this interpretation of the term 
``plant railroad'' has been upheld in litigation before the U.S. Court 
of Appeals for the Fifth Circuit. See Port of Shreveport-Bossier v. 
Federal Railroad Administration, No. 10-60324 (5th Cir. 2011) 
(unpublished per curiam opinion).
    FRA also makes clear that FRA's Policy Statement addresses 
circumstances where railroads that are part of the general system may 
have occasion to enter a plant railroad's property (e.g., a major 
railroad goes into a chemical or auto plant to pick up or set out cars) 
and operate over its track. As explained in the Policy Statement, the 
plant railroad itself does not get swept into the general system by 
virtue of the other railroad's activity, except to the extent it is 
liable, as the track owner, for the condition of its track over which 
the other railroad operates during its incursion into the plant. 
Accordingly, the rule would make clear that the track over which a 
general system railroad operates would not be excluded from the 
application of this part, even if the track is located within the 
confines of a plant railroad.

Section 213.113 Defective Rails

    Paragraph (a). In this paragraph, FRA is proposing to clarify that 
only a person qualified under Sec.  213.7 is qualified to determine 
that a track may continue to be utilized once a known defective 
condition is identified. FRA accepts the RSAC recommendation to add 
``or repaired'' to paragraph (a)(1) to allow railroads to use recently-
developed processes that remove the defective portion of the rail 
section and replace that portion utilizing recently-developed weld 
technologies commonly referred to as ``slot weld'' or ``wide gap 
weld.'' These processes allow the remaining portion of non-defective 
rail to remain in the track.
    Paragraph (b). FRA is proposing to redesignate existing paragraph 
(b) as paragraph (d) and add a new paragraph (b) providing that 
railroads have a four-hour period in which to verify that a suspected 
defect exists in the rail section. This would apply only to suspected 
defects that may require remedial action notes ``C'' through ``I,'' 
found in the remedial action table. This would not apply to suspected 
defects that may require remedial action notes ``A,'' ``A2,'' or ``B.'' 
The four-hour timeframe would provide the railroads flexibility to 
allow the rail flaw detector car to continue testing in a non-stop 
mode, without requiring verification of suspected defects that may 
require remedial action under notes ``C'' through ``I,'' when the track 
has to be cleared for train traffic movement. However, any suspected 
defect encountered that may require remedial action notes ``A,'' ``A2, 
``or ``B'' would require immediate verification. This brief, deferred-
verification period would also avoid the need to operate the detector 
car in a non-test, ``run light'' mode over a possibly severe defective 
rail condition that could cause a derailment while clearing the track.
    The primary purpose of the four-hour deferred-verification option 
is to assist the railroads in improving detector car utilization and 
production, increase the opportunity to detect larger defects, and 
ensure that all the rail the detector car travels over while in service 
is inspected. FRA is in agreement with the railroad industry that most 
tracks are accessible by road or hi-rail, and will support a deferred-
verification process where the operator can verify the suspect defect 
location with a portable type of test unit. FRA also agrees that if the 
detector car travels over the rail while in service it is more 
beneficial to complete the inspection over that location instead of 
leaving a possible serious internal defect undetected in the track.
    Paragraph (c). Currently, the remedial action table and its notes 
are included under paragraph (a). FRA is proposing to add a new 
paragraph (c) to contain both the table and its notes, as revised. 
Specifically, FRA proposes revisions to the remedial action table 
regarding

[[Page 64258]]

transverse defects. FRA would place the ``transverse fissure'' defect 
in the same category as detail fracture, engine burn fracture, and 
defective weld because they all normally fail in a transverse plane. 
The RITF discussed the possible addition of compound fissure to this 
category as well, to combine all transverse-oriented defects under the 
same remedial action. However, FRA ultimately determined that 
``compound fissure'' should not be included in this category because a 
compound fissure may result in rail failure along an oblique or angular 
plane in relation to the cross section of the rail and should be 
considered a more severe defect requiring more restrictive remedial 
action. In addition, FRA proposes that the header of the remedial 
action table for all transverse-type defects (i.e. compound fissures, 
transverse fissures, detail fractures, engine burn fractures, and 
defective welds) be revised to refer to the ``percentage of existing 
rail head cross-sectional area weakened by defect,'' to indicate that 
all transverse defect sizes are related to the actual rail head cross-
sectional area, thus taking rail head wear into consideration. This is 
proposed to preclude the possibility that the flaw detector operator 
may size transverse defects without accounting for the amount of rail 
head loss on the specimen.
    FRA's proposed revisions to the remedial action table would also 
reduce the current limit of eighty percent of the rail head cross-
sectional area requiring remedial action notes ``A2'' or ``E and H'' to 
sixty percent of the rail head cross-sectional area. FRA reviewed the 
conclusions of the most recent study performed by the Transportation 
Technology Center, Inc., concerning the development of transverse-
oriented detail fracture defects: ``Improved Rail Defect Detection 
Technologies: Flaw Growth Monitoring and Service Failure 
Characterization,'' AAR Report No. R-959, Davis, David D., Garcia, 
Gregory A., Snell, Michael E., September 2002. (A copy of this study 
has been placed in the public docket for this rulemaking.) The study 
concluded that detail fracture transverse development is considered to 
be inconsistent and unpredictable. Further, the average growth 
development of the detail fracture defects in the study exceeded five 
percent of the cross-sectional area of the rail head per every one mgt 
of train traffic. Id., at Table 1. Recognizing the impact of these 
findings, FRA believes that detail fracture defects reported as greater 
than sixty percent of the cross-sectional area of the rail head 
necessitate the remedial actions required under this section, 
specifically that the railroad assign a person designated under Sec.  
213.7 to supervise each operation over the defect or apply and bolt 
joint bars to the defect in accordance with Sec.  213.121(d) and (e), 
and limit operating speed over the defect to 50 m.p.h. or the maximum 
allowable speed under Sec.  213.9 for the class of track concerned, 
whichever is lower.
    FRA also proposes adding required remedial action for a 
longitudinal defect that is associated with a defective weld. This 
proposal is based on current industry detection and classification 
experience for this type of defect, and would assign remedial action 
for the railroads to utilize. FRA proposes adding this defect to the 
remedial action table and including all longitudinal defects within one 
group subject to identical remedial actions based on their reported 
sizes. These types of longitudinal defects all share similar growth 
rates and the same remedial actions are considered appropriate for each 
type.
    FRA also proposes the addition of ``Crushed Head'' to the remedial 
action table. This type of defect may affect the structural integrity 
of the rail section and impact vehicle dynamic response in the higher 
speed ranges. The RITF discussed the detection and classification of 
this type of defect, and its addition to the table would provide 
railroads with a remedial action to utilize. A crushed head defect 
would be identified in the table, and defined in paragraph (d) of this 
section, as being \3/8\ inch or more in depth and 8 inches or more in 
length.
    FRA notes that the AAR expressed some concern regarding Footnote 1 
of the remedial action table, which identifies conditions that could be 
considered a ``break out in rail head.'' The AAR pointed out that there 
had been previous incidents where an FRA inspector would consider a 
chipped rail end as a rail defect under this section, and at times the 
railroad was issued a defect or violation regarding this condition. FRA 
makes clear that a chipped rail end is not a designated rail defect 
under this section and is not, in itself, an FRA enforceable defective 
condition. Therefore, FRA intends to make clear in the Track Safety 
Standards Compliance Manual guidance for FRA inspectors that a chipped 
rail end is not to be considered as a ``break out in rail head.''
    FRA proposes the addition of a second footnote, Footnote 2, to the 
remedial action table. The footnote would provide that remedial action 
``D'' applies to a moon-shaped breakout, resulting from a derailment, 
with a length greater than 6 inches but not exceeding 12 inches and a 
width not exceeding one-third of the rail base width. FRA has proposed 
this change to allow relief because of the occurrence of multiple 
``broken base'' defects that result from a dragging wheel derailment 
that may prevent traffic movement. FRA also recommends that track 
owners conduct a special visual inspection of the rail, pursuant to 
Sec.  213.239, before the operation of any train over the affected 
track. A special visual inspection pursuant to Sec.  213.239, which 
requires an inspection be made of the track involved in a derailment 
incident, should be done to assess the condition of the track 
associated with these broken base conditions before the operation of 
any train over the affected track.

Revisions to the ``Notes'' to the Remedial Action Table

    Notes A, A2, and B. Notes A, A2, and B would be published in their 
entirety without substantive change.
    Note C. FRA proposes a revision to remedial action note C, which 
applies specifically to detail fractures, engine burn fractures, 
transverse fissures, and defective welds, and addresses defects that 
are discovered during an internal rail inspection required under Sec.  
213.237 and whose size is determined not to be in excess of twenty-five 
percent of the rail head cross-sectional area. For these specific 
defects, a track owner currently has to apply joint bars bolted only 
through the outermost holes at the defect location within 20 days after 
it is determined to continue the track in use. However, evaluation of 
recent studies on transverse defect development shows that slow crack 
growth life is inconsistent and unpredictable. Therefore, FRA believes 
waiting 20 days to repair this type of defect is too long. FRA proposes 
that for these specific defects a track owner must apply joint bars 
bolted only through the outermost holes to the defect within 10 days 
after it is determined to continue the track in use. FRA also proposes 
that when joint bars have not been applied within 10 days, the track 
speed must be limited to 10 m.p.h. until joint bars are applied. The 
RITF recommended this addition to allow the railroads alternative 
relief from remedial action for these types of defects in Class 1 and 2 
track, and FRA agrees with the Task Force.
    Note D. FRA proposes a revision to remedial action note D, which 
applies specifically to detail fractures, engine burn fractures, 
transverse fissures, and defective welds, and addresses defects that 
are discovered during an internal rail inspection required under Sec.  
213.237

[[Page 64259]]

and whose size is determined not to be in excess of 60 percent of the 
rail head cross-sectional area. Currently, for these specific defects, 
a track owner has to apply joint bars bolted only through the outermost 
holes at the defect location within 10 days after it is determined that 
the track should continue in use. However, evaluation of recent studies 
on transverse defect development shows that slow crack growth life is 
inconsistent and unpredictable. Therefore, FRA determined that allowing 
a 10-day period before repairing this type of defect is too long. 
Instead, FRA proposes that for these specific defects a track owner 
must apply joint bars bolted only through the outermost holes to the 
defect within 7 days after it is determined to continue the track in 
use. A timeframe of 7 days is sufficient to allow for replacement or 
repair of these defects, no matter when a defect is discovered. FRA 
also proposes that when joint bars have not been applied within 7 days, 
the speed must be limited to 10 m.p.h. until joint bars are applied. 
The RITF recommended this addition to allow the railroads alternative 
relief from remedial action for these types of defects in Class 1 and 2 
track, and FRA agrees with the Task Force.
    Note E. Note E would be published in its entirety without 
substantive change.
    Note F. FRA proposes to revise note F so that if the rail remains 
in the track and is not replaced or repaired, the re-inspection cycle 
starts over with each successive re-inspection unless the re-inspection 
reveals the rail defect to have increased in size and therefore become 
subject to a more restrictive remedial action. This process would 
continue indefinitely until the rail is removed from the track or 
repaired. If not inspected within 90 days, the speed would be limited 
to that for Class 2 track or the maximum allowable speed under Sec.  
213.9 for the class of track concerned, whichever is lower, until 
inspected. This change would define the re-inspection cycle and require 
the railroad to continue the re-inspection or apply a reduction in 
speed.
    Note G. Note G currently requires the railroad to inspect the 
defective rail within thirty days after it is determined that the track 
should continue to be used. FRA proposes to revise note G so that if 
the rail remains in the track and is not replaced or repaired, the re-
inspection cycle would start over with each successive re-inspection 
unless the re-inspection reveals the rail defect to have increased in 
size and therefore become subject to a more restrictive remedial 
action. This process would continue indefinitely until the rail is 
removed from the track or repaired. If not inspected within 30 days, 
the railroad would be required to limit the speed to that for Class 2 
track or the maximum allowable speed under Sec.  213.9 for the class of 
track concerned, whichever is lower, until inspected. This change would 
define the re-inspection cycle and require the railroad to continue the 
re-inspection or apply a reduction in speed.
    Notes H and I. Notes H and I would be published in their entirety 
without substantive change.
    Paragraph (d). FRA is proposing to redesignate paragraph (b) as 
paragraph (d) and to revise it to define terms used in this section and 
in Sec.  213.237. Definitions currently provided in paragraph (b)(1), 
(b)(3) through (8), (b)(10) through (13), and (b)(15) would be 
published in their entirety without substantive change. However, four 
terms would be redefined, and all terms would be enumerated in 
alphabetical order.
    (d)(3) Compound fissure. FRA proposes to revise this definition, 
including removing the last sentence of the current definition, which 
provides that ``[c]ompound fissures require examination of both faces 
of the fracture to locate the horizontal split head from which they 
originate.'' Rail failure analysis where a pre-existing fatigue 
condition is present normally exhibits an identical identifiable 
defective condition on both rail fracture faces. Thus, analysis of one 
fracture face should be sufficient to determine the type of defect, the 
origin of the defect, and the size of the defect. Additionally, it is 
typical in the railroad industry that only one failure fracture face is 
retained during the subsequent repair phase of rail replacement. 
Therefore, FRA has determined that the examination of only one fracture 
face is necessary to identify the horizontal split head from which 
compound fissures originate, and is proposing to modify the definition 
accordingly.
    (d)(4) Crushed head. As discussed earlier, FRA proposes the 
addition of ``Crushed head'' to the remedial action table. FRA 
recognizes that operators currently detect and classify this type of 
defect, and this addition would provide a remedial action for the 
railroad to use. Crushed head would be identified in the table and 
defined by the current industry standard as being a short length of 
rail, not at a joint, which has drooped or sagged across the width of 
the rail head to a depth of \3/8\ inch or more below the rest of the 
rail head and 8 inches or more in length. FRA proposes that 
measurements taken to classify the crushed head defect not include the 
presence of localized chips or pitting in the rail head. FRA notes that 
it plans to include this language in a section on ``Crushed head'' in 
the Track Safety Standards Compliance Manual.
    (d)(6) Defective weld. FRA is proposing to add required remedial 
action for a longitudinal defect that is associated with a defective 
weld. FRA has determined that the railroad industry currently detects 
and classifies this type of defect, and the addition would codify a 
specific remedial action for the railroads to utilize. FRA recognizes 
that these defects develop in an oblique or angular plane within the 
rail section and have growth rates comparable to other longitudinal-
type defects. Therefore, FRA believes that the same remedial action is 
appropriate.
    (d)(9) Flattened Rail. FRA proposes a change to the definition of 
flattened rail to be aligned with the current industry standard and 
Sec.  213.113 Remedial Action Table requirements that the area is 
flattened out across the width of the rail head to a depth of \3/8\ 
inch or more below the rest of the rail and 8 inches or more in length.

Section 213.119 Continuous Welded Rail (CWR); Plan Contents

    FRA proposes removing the requirement under paragraph (h)(7)(ii) of 
this section to generate a Joint Bar Fracture Report (Fracture Report) 
for every cracked or broken CWR joint bar that the track owner 
discovers during the course of an inspection. Currently under this 
section, any track owner, after February 1, 2010, could petition FRA to 
conduct a technical conference to review fracture report data submitted 
through December 2009 and assess the necessity for continuing to 
collect this data. One Class I railroad submitted a petition to FRA, 
and on October, 26, 2010, a meeting of the RSAC Track Standards Working 
Group served as a forum for a technical conference to evaluate whether 
there was a continued need for the collection of these reports. The 
Group ultimately determined that the reports were costly and burdensome 
to the railroads and their employees, while providing little useful 
research data to prevent future failures of CWR joint bars. The Group 
found that Fracture Reports were not successful in helping to determine 
the root cause of CWR joint bar failures because the reports gathered 
only a limited amount of information after the joint bar was already 
broken.
    Instead, the Group recommended that a new study be conducted to 
determine what conditions lead to CWR joint bar failures and include a 
description of the

[[Page 64260]]

overall condition of the track in the vicinity of the failed joint(s); 
photographic evidence of the failed joint, track geometry (gage, 
alignment, profile, cross-level) at the joint location; and the 
maintenance history at the joint location. Two Class I railroads 
volunteered to participate in a new joint bar study, which is expected 
to provide better data to pinpoint why CWR joint bars fail. In the 
meantime, given that FRA does not find it beneficial to the retain the 
existing requirement for railroads to submit CWR Joint Bar Fracture 
Reports, FRA proposes to remove the requirement and reserve the 
paragraph.

Section 213.237 Inspection of Rail

    Paragraph (a). Currently, under existing paragraph (a) of this 
section, Class 4 and 5 track, as well as Class 3 track over which 
passenger trains operate, is required to be tested for internal rail 
defects at least once every accumulation of 40 mgt or once a year 
(whichever time is shorter), and Class 3 track over which passenger 
trains do not operate is required to be tested at least once every 
accumulation of 30 mgt or once per year (whichever time is longer). 
When this provision was drafted, railroads were already initiating and 
implementing the development of a performance-based risk management 
concept for determining rail inspection frequency, which is often 
referred to as the ``self-adaptive scheduling method.'' Under this 
method, inspection frequency is established based on several factors, 
including the total detected defect rate per test, the rate of service 
failures between tests, and the accumulated tonnage between tests. The 
railroads then utilize this information to generate and maintain a 
service failure performance target.
    This NPRM proposes to revise paragraph (a) to require railroads to 
maintain service failure rates of no more than 0.1 service failure per 
year per mile of track for all Class 4 and 5 track; no more than 0.09 
service failure per year per mile of track for all Class 3, 4, and 5 
track that carries regularly-scheduled passenger trains or is a 
hazardous material route; and no more than 0.08 service failure per 
year per mile of track for all Class 3,4, and 5 track that carries 
regularly-scheduled passenger trains and is a hazardous material route.
    The proposed changes to this section seek to codify standard 
industry good practices. With the implementation of the self-adaptive 
method, railroads generally test more frequently than currently 
required, and the test intervals align more closely with generally-
accepted maintenance practices. The frequency of rail inspection cycles 
vary according to the total detected defect rate per test; the rate of 
service failures, as defined in paragraph (j) below, between tests; and 
the accumulated tonnage between tests--all of which are factors that 
the railroad industry's rail quality managers generally consider when 
determining test schedules.
    In 1990, as a result of its ongoing rail integrity research, FRA 
released report DOT/FRA/ORD-90/05; Control of Rail Integrity by Self-
Adaptive Scheduling of Rail Tests; Volpe Transportation Systems Center; 
Oscar Orringer. The research objective was to provide the basis for a 
specification to adequately control the scheduling of rail tests of 
U.S. railroads. The research provided quantitative guidelines for 
scheduling rail tests based on rail defect behavior. The purpose of 
this method for scheduling rail tests is to establish a performance 
goal that is most advantageous to the control of rail flaw development 
and subsequent rail failure in a designated track segment. If the 
performance goal is not met, a responsive adjustment is triggered to 
the rail test schedule to ensure that the goal is met.
    The research determined that a minimum requirement for annual rail 
testing requires a baseline figure of 0.1 service failure per mile for 
freight railroads. This baseline value can then be adjusted depending 
on characteristics of the individual railroad's operation and internal 
risk control factors. For instance, a railroad that handles multiple 
passenger trains a day may require scheduling rail test frequencies 
adequate to maintain a performance goal of 0.03 service failure. The 
baseline value applied for determining rail test frequencies can also 
be adjusted based on specific conditions that may influence rail flaw 
development such as age of the rail, rail wear, climate, etc. As a 
result, the RITF reached consensus that 0.1 service failure per mile 
was established as an appropriate minimum performance requirement for 
use in the U.S. freight railroad system. The Task Force also reached 
consensus that the minimum performance requirement should be adjusted 
to no more than 0.09 service failure per year per mile of track for all 
Class 3, 4, and 5 track that carries regularly-scheduled passenger 
trains or is a hazardous material route, and no more than 0.08 service 
failure per year per mile of track for all Class 3, 4, and 5 track that 
carries regularly-scheduled passenger trains and is a hazardous 
material route.
    Paragraph (b). Current paragraph (b) would be redesignated as 
paragraph (f) without substantive change. Under new paragraph (b), each 
rail inspection segment would be designated by the track owner. While 
the RITF discussed at length how best to define the term ``segment'' as 
it relates to inspection of rail under this section, ultimately the 
Task Force could not come to a consensus on a definition. The BMWED, 
NTSB and AAR were split on how best to define this term, and so no 
recommendation was ever made to the full RSAC. The BMWED and NTSB were 
concerned that collecting service failure rates that were averaged over 
excessively large segments of track (such as segments longer than a 
subdivision length) would fail to identify discrete areas of weakness 
with chronically high concentrations of service failures. At the same 
time, the BMWED and NTSB also recognized that if a segment size was too 
small, one random failure could trigger a service failure rate in 
excess of the performance target under this section. The BMWED and NTSB 
recommended that FRA impose a specific, uniform segment rate to be used 
by all railroads that is calculated to achieve the optimal length to 
avoid these problems.
    The AAR, on the other hand, maintained that each individual 
railroad is in the best position to determine its own segment lengths 
based on factors that are unique to the railroad's classification 
system. The AAR noted that each railroad has distinct segment 
configurations and challenges for which each railroad has developed 
specific approaches to identify and address them. The AAR believed that 
it was not possible to define a single methodology to appropriately 
address every railroad's specific configurations and factors, and that 
any approach established in a regulation would be extremely difficult 
and costly to implement. The AAR stated that the large amount of route 
miles, complex networks, and vast quantities of data being analyzed on 
Class I railroads requires an automated electronic approach that 
integrates satisfactorily with each railroad's data system, which 
currently Class I railroads utilize. Arbitrary segmentation limitations 
developed through regulation would not be compatible with some of those 
systems and would create an onerous and costly burden of redesigning 
systems, with little overall improvement to safety, according to the 
AAR. The AAR maintained that each individual service failure represents 
a certain risk which is not affected by whether it is close to other 
service failures. The AAR contended that the railroads want the service 
failure rate to

[[Page 64261]]

be as low as possible and look for any patterns in service failures 
that suggest ways to reduce the service failure rate. Noting that these 
patterns can be affected by a myriad of different factors, the AAR 
stated that trying to create artificial boundaries on the length of a 
segment could lead to a less than optimal use of internal rail 
inspection capabilities, as well as decreased safety.
    While FRA acknowledges the BMWED's and NTSB's concerns regarding 
identifying localized areas of failure, FRA recognizes that railroads 
have designed their current segment lengths through a decade of 
researching their own internal system rail testing requirements. This 
research takes into consideration pertinent criteria such as rail age, 
accumulated tonnage, rail wear, track geometry, and other conditions 
specific to these individual railroad-defined segments. FRA believes 
that altering existing railroad segment lengths without extensive data 
and research could be financially burdensome to individual railroads 
and detrimental to established rail maintenance programs, without 
yielding significant safety benefits.
    FRA believes that requiring a designated segment length that 
focuses on these localized areas could disrupt current engineering 
policies and result in problematic and costly adjustments to the 
railroads' current maintenance programs without providing significant 
safety benefits. In addition, recognizing the BMWED's and NTSB's 
concerns, FRA believes that railroads, as well as FRA, will be able to 
capture rail failure data, even in large segment areas, by simply 
looking at rail failure records and comparing milepost locations. 
Therefore, FRA is not recommending a uniform segment length to be 
applied by all railroads. Instead, FRA recommends that railroads 
utilize their own designated segment lengths, which they would be using 
at the time of the promulgation of the final rule arising from this 
NPRM. However, in order to maintain consistency and uniformity, FRA 
would require that if a railroad wishes to change or deviate from its 
segment lengths, the railroad must receive FRA approval to make that 
change. This would ensure that the railroad does not have the ability 
to freely alter the defined segment length in order to compensate for a 
sudden increase of detected defects and service failures that could 
require an adjustment to the test frequency as a result of accelerated 
defect development.
    Paragraph (c). FRA is proposing to redesignate current paragraph 
(c) as paragraph (e) and revise it, as discussed below. In new 
paragraph (c) FRA proposes that internal rail inspections on Class 4 
and 5 track, or Class 3 track with regularly scheduled passenger trains 
or that is a hazardous materials route, not exceed a time interval of 
370 days between inspections or a tonnage interval of 30 mgt between 
inspections, whichever is shorter. The addition of this 370-day 
interval or 30-mgt accumulation would provide a maximum timeframe 
between tests on lines that may not be required to undergo testing on a 
more frequent basis in order to achieve the performance target rate. If 
limits were not set, for example, a railroad line carrying only 2 mgt a 
year could possibly go 15 years without testing. This length of time 
without testing was unacceptable to the Task Force; therefore, these 
proposed limits were included.
    Paragraph (c) would also provide that internal rail inspections on 
Class 3 track without regularly-scheduled passenger trains that is not 
a hazardous materials route must be inspected at least once each 
calendar year, with no more than 18 months between inspections, or at 
least once every 30 mgt, whichever interval is longer, with the 
additional provision that inspections cannot be more than 5 years 
apart. The additional requirement for a maximum inspection interval of 
370 days or tonnage accumulation of 30 mgt between rail inspections 
would provide a maximum time and tonnage interval between rail tests 
for low-tonnage lines. The reason why testing for internal rail defects 
would be decreased from 40 mgt to 30 mgt is because studies have shown 
that, while the predominant factor that determines the risk of rail 
failure is the rate of development of internal flaws, the development 
of internal rail flaws is neither constant nor predictable. Previous 
studies on the development of transverse-oriented rail defects showed 
the average development period to be 2% of the cross-sectional area of 
the rail head per mgt, which meant that rail testing would have to 
completed within every 50 mgt. However, the RITF took into 
consideration the conclusions of a more recent study performed by the 
Transportation Technology Center, Inc., Improved Rail Defect Detection 
Technologies: Flaw Growth Monitoring and Service Failure 
Characterization, AAR Report NO. R-959, Gregory A. Garcia, Michael E. 
Snell, David D. Davis, September 2002, concerning the development of 
transverse-oriented detail fracture defects, which concluded that 
detail fracture transverse development averaged 5% of the cross-
sectional area of the rail head per mgt. This would mean that testing 
would have to be done every 20 mgt. However, the study also concluded 
that development of internal rail flaws was considered to be 
inconsistent and unpredictable. Thus, as a result, consensus was 
reached to lower the 40-mgt limit between tests to 30 mgt.
    Selecting an appropriate frequency for rail testing is a complex 
task involving many different factors including rail head wear, 
accumulated tonnage, rail surface conditions, track geometry, track 
support, steel specifications, temperature differentials, and residual 
stresses. Taking into consideration the above factors, FRA's research 
suggests that all of these criteria influence defect development (and 
ultimately rail service failure rates) and are considered in the 
determination of rail inspection frequencies when utilizing the 
performance-based self-adaptive test method.
    For railroads without access to a sophisticated self-scheduling 
algorithm to determine testing frequencies, FRA would post an algorithm 
program designed by the Volpe Center on the FRA Web site. The algorithm 
would require five inputs: (1) Service failures per mile in the 
previous year; (2) detected defects per mile in the previous year; (3) 
annual tonnage; (4) number of rail tests conducted in the previous 
year; and (5) the targeted number of service failures per mile. Once 
the input is complete, the algorithm would take the average of two 
numbers when it calculates the number of rail tests. The first number 
would be based on the service failure rate. The second would be based 
on the total defect rate, which is the service defect rate plus the 
detected defect rate. This rate of designated tests per year for the 
designated segment would be the number of required tests per year 
enforced by FRA for the segment.
    The NPRM also proposes the addition of requirements for inspection 
of rail intended for reuse, or ``plug rail.'' On March 8, 2006, FRA 
issued Notice of Safety Advisory 2006-02 (SA), which promulgated 
recommended industry guidelines for the reuse of plug rail. 71 FR 
11700. The recommendations in the SA consisted of two options for 
assuring that reused rail was free from internal defects.
    Specifically, FRA's SA recommended that the entire length of any 
rail that is removed from track and stored for reuse must be retested 
for internal flaws. FRA also recommended that, recognizing that some 
railroads do not have the equipment to test second-hand rail in 
accordance with the recommendation above, railroads were encouraged to

[[Page 64262]]

develop a classification program intended to decrease the likelihood 
that a railroad will install second-hand rail containing defects back 
into active track. In addition, FRA recommended that a highly visible 
permanent marking system be developed and used to mark defective rails 
that railroads remove from track after identifying internal defects in 
those rails.
    During some of the first RITF discussions, the NTSB expressed 
concern over one aspect of FRA's SA: the guidance that provides that 
rail is suitable for reuse if it has not accumulated more than 15 mgt 
since its last valid rail test. The NTSB suggested that such rail could 
experience up to 55 mgt before its next inspection if it were put in 
track at a location that had just been inspected and whose inspection 
frequency is every 40 mgt. The NTSB believed that all plug rail should 
be immediately inspected prior to reuse.
    Also during RITF discussions, railroads described their method for 
assuring that rail intended for reuse is free of internal defects. In 
general, it was found that most railroads perform an ultrasonic 
inspection on rail intended for reuse while in the track and allow 
accumulation of tonnage prior to removal, or they perform an inspection 
and certification process of the rail after it has been taken out of 
service and prior to re-installation. However, the railroads stressed 
that plug rail inspection requirements should not be overly burdensome 
and should meet the same standards as any other rail inspections per 
the regulations.
    FRA shares the railroads' concerns about creating a standard for 
rail inspection that would allow 30-mgt accumulation on in-service 
rail, but would mandate immediate inspection of plug rail prior to 
reuse. Consequently, FRA's proposal allows for plug rail to be 
inspected at the same frequency as conventional rail. This proposal 
would, therefore, supersede FRA Safety Advisory 2006-02 and codify 
current industry practice by allowing the use of rail that has been 
previously tested to be placed in track and retested at the normal 
frequency for that track segment. Nonetheless, all else being equal, 
FRA does recommend that the rail be tested prior to installation in 
track for reuse, even though FRA believes that requiring that the 
railroad test the rail immediately prior to installation is too 
restrictive. Alternatively, FRA believes that the railroad should have 
knowledge of the date the rail was last tested and ensure that the 
maximum tonnage of 30 mgt is not exceeded prior to retesting the rail. 
Once the rail is installed in track, FRA expects the rail to be tested 
in accordance with the test frequency of the designated segment. FRA 
would require the railroad to have the ability to verify when the rail 
was last tested and the accumulated tonnage prior to installation.
    Paragraph (d). Current paragraph (d) would be redesignated as 
paragraph (g) and revised, as discussed below. In new paragraph (d), 
FRA proposes restrictions that would apply if the service failure 
target rate is not achieved on a segment of track for two consecutive 
twelve-month periods. FRA recognizes that the service failure target 
rate may be exceeded within one defined twelve-month period. Therefore, 
the railroad would be allowed an additional year to adjust its rail 
integrity management program to bring the service failure rate on the 
offending track segment into compliance with the requirements. If the 
service failure target rate is exceeded for two consecutive twelve-
month periods, the railroad would be required to comply with the 
requirements in paragraph (d) for either a minimum rail test frequency 
or a speed restriction on the offending track segment.
    Paragraph (e). As noted above, FRA is proposing to redesignate 
paragraph (c) as paragraph (e) with some revision. Specifically, in 
paragraph (e) FRA proposes to require that each defective rail be 
marked with a highly visible marking on both sides of the web and base 
except that, where a side or sides of the web and base are inaccessible 
because of permanent features, the highly visible marking would be 
placed on or next to the head of the rail. This option to mark the rail 
head in certain situations would provide an alternative to the railroad 
in areas where the web or base may not be accessible. Current paragraph 
(e) would be redesignated as paragraph (h) and revised, as discussed 
below.
    Paragraph (f). As stated above, FRA proposes to redesignate current 
paragraph (b) as paragraph (f) without substantive change.
    Paragraph (g). Paragraph (g) would address the case where a valid 
search for internal rail defects could not be made because of rail 
surface conditions. Several types of technologies are presently 
employed to continuously search for internal rail defects, some capable 
of displaying and monitoring search signal returns. A continuous search 
is intended to mean an uninterrupted search by whatever technology is 
being used, so that there are no segments of rail that are not tested. 
If the test is interrupted, e.g., as a result of rail surface 
conditions that inhibit the transmission or return of the signal, then 
the test over that segment of rail may not be valid because it was not 
continuous. Therefore, as proposed in the NPRM, a valid search for 
internal rail defects would be defined in paragraph (j), below, as a 
``valid test'' during which the equipment is performing as intended and 
equipment responses are interpreted by a qualified operator as defined 
in Sec.  213.238. In conducting a valid search, the operator would need 
to determine that the test has not been compromised due to 
environmental contamination, rail conditions, or test equipment 
performance.
    Paragraph (h). FRA proposes to redesignate current paragraph (e) as 
paragraph (h) and revise it. In paragraph (h), FRA proposes to specify 
the options available to a railroad following a non-test. These options 
must be exercised prior to the expiration of the time or tonnage limits 
specified in paragraphs (a) or (c) of this section.
    Paragraph (i). FRA proposes a new paragraph (i) to require that the 
rail flaw detector car operator be qualified as defined in new Sec.  
213.238, ``Qualified operator,'' which would prescribe minimum training 
requirements for railroad personnel performing in this occupation.
    Paragraph (j). FRA proposes to add paragraph (j) to provide new 
definitions for terms that are used in this section and that are 
applicable only to this section.
    Hazardous materials route. FRA proposes a definition for 
``hazardous material route'' to be applied when determining the service 
failure target rate pursuant to paragraph (a) of this section.
    Plug rail. FRA proposes a definition for ``plug rail'' to mean a 
length of rail that has been removed from one track location and stored 
for future use as a replacement rail at another location.
    Service failure. FRA proposes that only the listed fatigue defects, 
i.e., compound fissure, transverse fissure, detail fracture, or 
vertical split head, are to be utilized for determining the fatigue 
service failure rate. Since other defect types are more likely to go 
undetected, and how well defects can be detected is influenced by 
conditions other than fatigue, they would not be included in the 
service failure rate calculation.
    Valid search. FRA proposes a definition to ensure that a valid test 
under this section has been conducted. As proposed, the test equipment 
must perform as intended and equipment responses must be properly 
interpreted by a qualified operator as defined in Sec.  213.238.

[[Page 64263]]

Section 213.238 Qualified Operator

    FRA proposes to add this new section to require that any entity 
that conducts rail flaw detection have a documented training program to 
ensure that a flaw detection equipment operator is qualified to operate 
each of the various types of equipment currently utilized in the 
industry for which he or she is assigned, and that proper training is 
provided if new rail flaw detection technologies are utilized.
    As proposed in paragraph (b), the operator must have documentation 
from his or her employer that designates his or her qualifications to 
perform various functions associated with the flaw detection process. 
Specifically, requirements are proposed to help ensure that the 
operator is able to determine that a valid search for internal rail 
flaws is conducted, the equipment is functioning properly at all times, 
and the operator can properly interpret the test results and understand 
test equipment environmental limitations.
    In paragraph (c), FRA proposes that the operator must receive a 
minimum amount of documented, supervised training according to the rail 
flaw detection equipment or employer's training program. FRA 
understands that this training may not be entirely held within the 
classroom environment and is in agreement that the employer should have 
the flexibility to determine the training process that is appropriate 
for compliance. The operator would be required to demonstrate 
proficiency for each type of equipment the employer intends the 
operator to use, and documentation must be available to FRA to verify 
the qualification.
    As proposed in paragraph (d), operator reevaluation and, as 
necessary, refresher training would be provided in accordance with the 
employer's training program. The employer would be provided the 
flexibility to determine the necessary process and the frequency.
    In paragraph (e), FRA proposes that the employer maintain a written 
or electronic record of each operator's qualification. The record must 
include the operator's name, type of equipment qualification, date of 
initial qualification, and most recent re-evaluation of his or her 
qualifications, if any. This proposal is intended to ensure consistent 
recordkeeping and that FRA can accurately verify compliance.
    FRA proposes in paragraph (f) that existing rail flaw detection 
operators, prior to the date of promulgation of the final rule arising 
from this rulemaking, be considered qualified to operate the equipment 
as designated by the employer. Any employee that is considered for the 
position of qualified operator subsequent to the date of promulgation 
of the final rule must be qualified in accordance with paragraph (c) of 
this section.
    Finally, in paragraph (g) FRA proposes that the records 
specifically associated with the operator qualification process are 
maintained at a designated location and made available to FRA as 
requested. This is intended to assist FRA to accurately verify the 
railroad's compliance.

Section 213.241 Inspection Records

    This section contains requirements for keeping, handling, and 
making available records of track inspections required in accordance 
with subpart F.
    Paragraphs (a) and (b) would remain unchanged.
    FRA proposes to revise paragraph (c) to require that the railroad's 
rail inspection records include the date of inspection, track 
identification and milepost for each location tested, type of defect 
found and size if not removed prior to traffic, and initial remedial 
action as required by Sec.  213.113. FRA also proposes that all tracks 
that do not receive a valid test be documented in the railroad's rail 
inspection records. These changes would respond to a recommendation 
arising out of the report by DOT's OIG referenced above, ``Enhancing 
the Federal Railroad Administration's Oversight of Track Safety 
Inspections,'' CR-2009-038, February 24, 2009, which is available on 
the OIG's public Web site at: http://www.oig.dot.gov/sites/dot/files/pdfdocs/Signed_Final_Track_Safety_Report_02-24-09.pdf. The OIG 
recommended that FRA ``[r]evise its track safety regulations for 
internal rail flaw testing to require the railroads to report all track 
locations (milepost numbers or track miles) covered during internal 
rail flaw testing.'' See OIG report at p. 8. The last sentence of 
current paragraph (c) would be moved to paragraph (d), as discussed 
below.
    FRA proposes to redesignate current paragraph (d) as paragraph (f). 
In its place, FRA proposes to move to paragraph (d) and slightly modify 
the last sentence in current paragraph (c). In paragraph (d), FRA 
proposes that the railroads be required to maintain the rail inspection 
records at least for two years after an inspection has occurred and for 
one year after the initial remedial action has been taken. This 
information is vital for FRA to determine compliance with the rail 
integrity and inspection requirements in Sec.  213.113 and Sec.  
213.237.
    FRA proposes to redesignate current paragraph (e) as paragraph (g) 
without substantive change. In new paragraph (e), FRA proposes that 
rail inspection records must be maintained to sufficiently demonstrate 
compliance with proposed Sec.  213.237(a). This requirement is intended 
to provide sufficient information to determine that accurate data 
concerning detected defects is utilized by the railroads as input into 
the performance-based test frequency formula. During RITF discussions, 
the railroads asked that FRA requests for records of rail inspections 
demonstrating compliance with required test frequencies be made by a 
designated FRA Rail Integrity Specialist; each railroad would then 
designate a person within its organization whom the Rail Integrity 
Specialists would contact when requesting records of rail inspections. 
FRA agrees that this suggested approach would be an efficient way to 
obtain inspection records and FRA intends to adopt this approach 
through guidance in FRA's Track Safety Compliance Manual.
    As discussed above, FRA proposes to redesignate current paragraph 
(d) as paragraph (f) without substantive change. The paragraph provides 
that track inspection records be made available for inspection and 
copying by the Federal Railroad Administration upon request.
    As discussed above, FRA proposes to redesignate current paragraph 
(e) as paragraph (g) without substantive change. This paragraph 
contains requirements for maintaining and retrieving electronic records 
of track inspections.

VII. Regulatory Impact and Notices

A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures and determined to be non-significant under both 
Executive Orders 12866 and 13563 and DOT policies and procedures. See 
44 FR 11034; February 26, 1979. FRA has prepared and placed in the 
docket a Regulatory Evaluation addressing the economic impact of this 
proposed rule. As part of the regulatory evaluation, FRA has assessed 
any quantitative costs from the implementation of this rule as 
proposed, and believes that the rail industry is already in compliance 
with the proposed requirements and that there are no new costs 
associated with the rule. FRA has also estimated the benefits of the 
rule and that, for a 20-

[[Page 64264]]

year period, the industry would save $61.3 million, with a present 
value (PV, 7) of $34.8 million. This cost-benefit analysis of the rule 
shows that the potential benefits from the proposal would exceed any 
costs.
    FRA considered potential industry costs associated with the 
proposed rule, including: minimum qualification requirements for rail 
flaw detection equipment operators, as well as revisions to 
requirements for effective rail inspection frequencies, rail flaw 
remedial actions, and requirements for rail inspection records. The 
bulk of this proposed regulation would codify the railroad industry's 
current good practices. FRA believes that the railroad industry is 
currently following these practices, but requests comments in our 
assumptions, specifically the extent to which all Class III railroads 
with Class 3, 4 or 5 track would already be in compliance with this 
rule as proposed. For more details, please see the Regulatory 
Evaluation found in the docket.
    As part of the Regulatory Evaluation, FRA also explained what the 
likely benefits for this proposed rule would be, and provided a cost-
benefit analysis. FRA anticipates that this rulemaking would enhance 
the current Track Safety Standards by allocating more time to rail 
inspections, increasing the opportunity to detect larger defects 
sooner, providing assurance that qualified operators are inspecting the 
rail, and causing inspection records to contain more useful 
information. The main benefit associated with this proposed rule is 
derived from granting the railroads a four-hour window to verify 
defects found in a rail inspection. Without the additional time to 
verify a defect, railroads currently must stop their inspection when a 
suspect defect is identified and then resume their inspection after the 
defect is verified. The defects subject to the proposed deferred 
verification allowance are usually considered less likely to cause 
immediate rail failure, and require less restrictive remedial action. 
The additional time permits railroads to avoid the cost of paying their 
internal inspection crews or renting a rail car flaw detector an 
additional half day, saving the industry $8,400 per day. FRA believes 
the value of the anticipated benefits would easily justify any cost of 
implementing the rule as proposed.


                   20-Year Benefits for Proposed Rule
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Four-Hour Inspection Window.............................    $34,754,935*
                                                         ---------------
    Total...............................................    $34,754,935*
------------------------------------------------------------------------
* Benefits are discounted to present value using a 7 percent discount
  rate.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
Executive Order 13272 (67 FR 53461; August 16, 2002) require agency 
review of proposed and final rules to assess their impact on small 
entities. An agency must prepare an initial regulatory flexibility 
analysis (IRFA) unless it determines and certifies that a rule, if 
promulgated, would not have a significant impact on a substantial 
number of small entities. FRA has not determined whether this proposed 
rule would have a significant impact on a substantial number of small 
entities. Therefore, FRA is publishing this IRFA to aid the public in 
commenting on the potential small business impacts of the proposed 
requirements in this NPRM. FRA invites all interested parties to submit 
data and information regarding the potential economic impact on small 
entities that would result from the adoption of this NPRM. FRA will 
consider all comments received in the public comment process when 
making a final determination.
    The proposed rule would apply to all railroads that own Class 3, 4 
or 5 track. Based on information currently available, FRA estimates 
that all small entities are already in compliance the proposed rule. 
Therefore, FRA believes that no small business would be negatively 
impacted by the proposed rule, as there are no additional costs.
    Based on FRA's railroad reporting data from 2010 there are 710 
Class III railroads; however, of those 710, only 58 own Class 3, 4 or 5 
track and could be considered small for the purposes of this analysis. 
FRA knows that 51 of those railroads are already in compliance with the 
rule, as proposed, and believes that the other 7 Class III railroads 
are also in compliance, but does not have that information to confirm 
this statement. FRA requests comments on this assumption believing that 
no extra investments or costs would need to be made to meet the 
proposed requirements. Even if those 7 entities were impacted, the 
economic impact on them would likely not be significant. This IRFA is 
not intended to be a stand-alone document. The discussion of total 
regulatory cost in the Regulatory Evaluation is the basis for the 
estimates in this IRFA and it has been placed in the docket for public 
review as it provides extensive information about any costs of the 
proposed regulation for each specific requirement in this NPRM.
    In accordance with the Regulatory Flexibility Act, an IRFA must 
contain:
     A description of the reasons why the action by the agency 
is being considered.
     A succinct statement of the objectives of, and legal basis 
for, the proposed rule.
     A description--and, where feasible, an estimate of the 
number--of small entities to which the proposed rule will apply.
     A description of the projected reporting, record keeping, 
and other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities that will be subject to the 
requirements and the types of professional skills necessary for 
preparation of the report or record.
     An identification, to the extent practicable, of all 
relevant Federal rules that may duplicate, overlap, or conflict with 
the proposed rule.
1. Reasons for Considering Agency Action
    The goal of the proposed rule is to amend the existing Federal 
Track Safety Standards to improve rail flaw detection processes and 
promote safety in railroad operations. Rail Integrity is a priority for 
FRA and the railroad industry. FRA is using this opportunity to 
modernize Federal track standards with the industry's current good 
practices. FRA would also grant the railroads a 4-hour window to verify 
a defect. This would save the industry millions of dollars, as it takes 
additional time and money to not only obtain or operate, or both, a 
rail flaw detector car, but also find free time on track segments to 
conduct additional inspections.
    After reviewing the current track standards, FRA determined the 
best, most cost-efficient and beneficial way to modernize our standards 
was to propose this rule. FRA anticipates that the proposed 
requirements would be accepted by the industry as being as unobtrusive 
as possible.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    The purpose of this rulemaking is to amend the Federal Track Safety 
Standards to improve rail flaw detection processes and promote the 
safety of railroad operations.
    Pursuant to 49 U.S.C. 20103, the Secretary maintains general 
authority to prescribe regulations as necessary in

[[Page 64265]]

any area of railroad safety. The Track Safety Standards fall under this 
purview. Additionally, on October 16, 2008, the RSIA was enacted into 
law. Section 403(a) of the RSIA required the Secretary to conduct a 
study of track issues, known as the Track Inspection Time Study 
(Study). The study was completed and presented to Congress on May 2, 
2011. Section 403(c) of the RSIA further provides that FRA prescribe 
regulations based on the results of the Study two years after its 
completion. As delegated by the Secretary, FRA initially looked at 
creating a new regulation focusing on the recommendations of the Study; 
however, it was determined that multiple proposed rules were already 
addressing these recommendations. Therefore, this regulation in 
conjunction with other recent proposed and final FRA rules will allow 
FRA to fulfill the RSIA mandate.
    Overall, FRA is using this opportunity to improve the existing 
track safety standards in 49 CFR part 213.
3. A Description of, and Where Feasible, an Estimate of Small Entities 
To Which the Proposed Rule Would Apply
    The ``universe'' of the entities to be considered generally 
includes only those small entities that are reasonably expected to be 
directly regulated by this rulemaking. This proposed rule would affect 
all railroads that own Class 3, 4 or 5 track.
    ``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines 
a ``small entity'' as having the same meaning as ``small business 
concern'' under section 3 of the Small Business Act. This includes any 
small business concern that is independently owned and operated, and is 
not dominant in its field of operation. Section 601(4) likewise 
includes within the definition of ``small entities'' not-for-profit 
enterprises that are independently owned and operated, and are not 
dominant in their field of operation. The Small Business Administration 
(SBA) stipulates in its size standards that the largest a railroad 
business firm that is ``for profit'' may be and still be classified as 
a ``small entity'' is 1,500 employees for ``Line Haul Operating 
Railroads'' and 500 employees for ``Switching and Terminal 
Establishments.'' Additionally, 5 U.S.C. 601(5) defines as ``small 
entities'' governments of cities, counties, towns, townships, villages, 
school districts, or special districts with populations less than 
50,000.
    Federal agencies may adopt their own size standards for small 
entities in consultation with the SBA and in conjunction with public 
comment. Pursuant to that authority, FRA has published a final 
statement of agency policy that formally establishes ``small entities'' 
or ``small businesses'' as being railroads, contractors, and hazardous 
materials shippers that meet the revenue requirements of a Class III 
railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less 
in inflation-adjusted annual revenues; and commuter railroads or small 
governmental jurisdictions that serve populations of 50,000 or less. 
See 68 FR 24891, May 9, 2003, codified at appendix C to 49 CFR part 
209. The $20 million-limit is based on the Surface Transportation 
Board's revenue threshold for a Class III railroad. Railroad revenue is 
adjusted for inflation by applying a revenue deflator formula in 
accordance with 49 CFR 1201.1-1. FRA is proposing to use this 
definition for this rulemaking. Any comments received pertinent to its 
use will be addressed in the final rule.
    According to FRA, there are a total of 763 regulated railroads. 
There are 7 Class I railroads and 12 Class II railroads, all which are 
not considered to be small. There are a total of 29 commuter/passenger 
railroads, including Amtrak, affected by this rule. However, most of 
the affected commuter railroads are part of larger public 
transportation agencies that receive Federal funds and serve major 
jurisdictions with populations greater than 50,000.
    The level of costs incurred by each railroad should generally vary 
in proportion to the number of miles of Class 3, 4 or 5 track. For 
instance, railroads with less mileage should have lower overall costs 
associated with implementing the standards, as proposed. There are 710 
Class III railroads. Of those railroads, only 58 are affected by the 
rule. However, FRA has confirmation that 51 of these small railroads 
are already in compliance with this regulation. FRA also believes that 
the remaining 7 affected Class III railroads are also in compliance, 
and that no small entity would be negatively impacted by this 
regulation.
4. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rule, Including an Estimate of the Class 
of Small Entities That Will Be Subject to the Requirements and the Type 
of Professional Skill Necessary for Preparation of the Report or Record
    For a thorough presentation of cost estimates, please refer to the 
Regulatory Evaluation, which has been placed in the docket for this 
rulemaking.
    Rail and infrastructure integrity specialists in FRA's Office of 
Railroad Safety anticipate that all railroads that would be required to 
comply with the regulation, as proposed, are already in compliance with 
the proposed requirements. Even if the 7 small railroads that FRA 
assumed are in compliance with the rule are not, the added costs would 
be minimal. FRA estimates that it would cost a Class III railroad 
$2,000 per day to rent a rail flaw detector car. The average Class III 
railroad that owns Class 3, 4, or 5 track has approximately 70 miles of 
track. FRA estimates it would take 3 days to inspect their entire 
track. The total cost per railroad would be $6,000 per year. Again, FRA 
is confident that these railroads are already inspecting their track at 
least once a year; however, if these entities were not in compliance, 
FRA believes a cost of $6,000 per year would not be a significant 
economic impact on the railroads.
5. An Identification, to the Extent Practicable, of All Relevant 
Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule
    FRA is not aware of any relevant Federal rules that may duplicate, 
overlap or conflict with the specific requirements proposed in this 
rule.
    FRA invites all interested parties to submit data and information 
regarding the potential economic impact that would result from adoption 
of the proposals in this NPRM. FRA will consider all comments received 
in the public comment process when making a final determination.

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

[[Page 64266]]



----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
           CFR section             Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
213.4--Excepted track:
    --Designation of track as      236 railroads......  20 orders..........  15 minutes.........               5
     excepted.
    --Notification to FRA about    236 railroads......  15 notification....  10 minutes.........               3
     removal of excepted track.
213.5--Responsibility of track     763 railroads......  10 notification....  8 hours............              80
 owners.
213.7--Designation of qualified
 persons to supervise certain
 renewals and inspect track:
    --Designation................  763 railroads......  1,500 names........  10 minutes.........             250
    --Employees trained in CWR     37 railroads.......  8,000 trained        90 minutes.........          12,000
     procedures.                                         employees.
    --Written authorizations and   37 railroads.......  8,000 auth. + 8,000  10 minutes + 60               9,333
     recorded exams.                                     exams.               minutes.
    --Designations (partially      37 railroads.......  250 names..........  10 minutes.........              42
     qualified) under paragraph
     (c) of this section.
213.17--Waivers..................  763 railroads......  6 petitions........  24 hours...........             144
213.57--Curves, elevation and
 speed limitations:
    --Request to FRA for approval  763 railroads......  2 requests.........  40 hours...........              80
    --Notification to FRA with     763 railroads......  2 notifications....  45 minutes.........               2
     written consent of other
     affected track owners.
    --Test plans for higher        1 railroad.........  2 test plans.......  16 hours...........              32
     curving speeds.
213.110--Gage restraint
 measurement systems (GRMS):
    --Implementing GRMS--notices   763 railroads......  5 notifications + 1  45 minutes.........               8
     & reports.                                          tech rpt.
    --GRMS vehicle output reports  763 railroads......  50 reports.........  4 hours 5 minutes..               4
    --GRMS vehicle exception       763 railroads......  50 reports.........  5 minutes..........               4
     reports.
    --GRMS/PTLF--procedures for    763 railroads......  4 proc. docs.......  2 hours............               8
     data integrity.
    --GRMS training programs/      763 railroads......  2 programs + 5       16 hours...........             112
     sessions.                                           sessions.
    --GRMS inspection records....  763 railroads......  50 records.........  2 hours............             100
213.118--Continuous welded rail
 (CWR); plan review and approval:
    --Plans with written           279 railroads......  279 plans..........  4 hours............           1,116
     procedures for CWR.
    --Notification to FRA and RR   279 railroads......  279 + 8,000          15 minutes + 2                  336
     employees of CWR plan                               notifications.       minutes.
     effective date.
    --Written submissions after    279 railroads......  20 submissions.....  2 hours............              40
     plan disapproval.
    --Final FRA disapproval and    279 railroads......  20 amended plans...  1 hour.............              20
     plan amendment.
213.119--Continuous welded rail
 (CWR); plan contents:
    --Annual CWR training of       279 railroads......  8,000 trained        30 minutes.........           4,000
     employees.                                          employees.
    --Record keeping.............  279 railroads......  2,000 records......  10 minutes.........             333
    --Record keeping for CWR rail  279 railroads......  360,000 rcds.......  2 minutes..........          12,000
     joints.
    --Periodic records for CWR     279 railroads......  480,000 rcds.......  1 minute...........           8,000
     rail joints.
    --Copy of track owner's CWR    279 railroads......  279 manuals........  10 minutes.........              47
     procedures.
213.233--Track inspections--       763 railroads......  12,500 notations...  1 minute...........             208
 Notations.
213.241--Inspection records......  763 railroads......  1,542,089 records..  Varies.............       1,672,941
213.303--Responsibility for        2 railroads........  1 notification.....  8 hours............               8
 compliance.
213.305--Designation of qualified
 individuals; general
 qualifications:
    --Designations (partially      2 railroads........  20 designations....  10 minutes.........               3
     qualified).
213. 317--Waivers................  2 railroads........  1 petition.........  80 hours...........              80
213.329--Curves, elevation and     2 railroads........  3 notifications....  40 hours...........             120
 speed limitations.
    --Written notification.......  2 railroads........  3 notifications....  45 minutes.........               2
213.333--Automated vehicle         2 railroads + 1      18 reports.........  20 hours...........             360
 inspection systems.                possible future
                                    railroad.
    --Track/vehicle performance    2 railroads........  13 printouts.......  20 hours...........             260
     measurement system.
213.341--Initial inspection of
 new rail and welds:
    --Mill inspection............  2 railroads........  2 reports..........  16 hours...........              32
    --Welding plant inspection...  2 railroads........  2 reports..........  16 hours...........              32
    --Inspection of field welds..  2 railroads........  125 reports........  20 minutes.........              42
213.343--Continuous welded rail    2 railroads........  150 records........  10 minutes.........              25
 (CWR).
213.345--Vehicle qualification     1 railroad.........  2 reports..........  560 hours..........           1,120
 testing.
213.369--Inspection records......  2 railroads........  500 records........  1 minute...........               8
    --Inspection defects +         2 railroads........  50 records.........  5 minutes..........               4
     remedial action.
----------------------------------------------------------------------------------------------------------------


[[Page 64267]]

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning the following: whether 
these information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Office of Railroad Safety, Information Clearance Officer, at 202-493-
6292, or Ms. Kimberly Toone, Office of Financial Management and 
Administration, Information Clearance Officer, at 202-493-6132.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New 
Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via email to Mr. Brogan or Ms. Toone at the following 
address: Robert.brogan@dot.gov; Kimberly.toone@dot.gov.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. The final rule and 
associated information collection submission will respond to any OMB or 
public comments on the information collection requirements contained in 
this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements that do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the eventual 
final rule. The OMB control number, when assigned, will be announced by 
separate notice in the Federal Register.

D. Environmental Impact

    FRA has evaluated this NPRM in accordance with its ``Procedures for 
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545, 
May 26, 1999) as required by the National Environmental Policy Act (42 
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, 
and related regulatory requirements. FRA has determined that this 
action is not a major FRA action (requiring the preparation of an 
environmental impact statement or environmental assessment) because it 
is categorically excluded from detailed environmental review pursuant 
to section 4(c)(20) of FRA's Procedures. 64 FR 28547, May 26, 1999. In 
accordance with section 4(c) and (e) of FRA's Procedures, the agency 
has further concluded that no extraordinary circumstances exist with 
respect to this NPRM that might trigger the need for a more detailed 
environmental review. As a result, FRA finds that this NPRM is not a 
major Federal action significantly affecting the quality of the human 
environment.

E. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local governments 
or the agency consults with State and local government officials early 
in the process of developing the regulation. Where a regulation has 
federalism implications and preempts State law, the agency seeks to 
consult with State and local officials in the process of developing the 
regulation.
    FRA has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132. If adopted, 
this proposed rule would not have a substantial direct effect on the 
States, on the relationship between the Federal government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. FRA has also determined that this 
proposed rule would not impose substantial direct compliance costs on 
State and local governments. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply.
    Moreover, FRA notes that RSAC, which endorsed and recommended the 
majority of this proposed rule, has as permanent members, two 
organizations representing State and local interests: AASHTO and ASRSM. 
Both of these State organizations concurred with the RSAC 
recommendation made in this rulemaking. RSAC regularly provides 
recommendations to the Administrator of FRA for solutions to regulatory 
issues that reflect significant input from its State members. To date, 
FRA has received no indication of concerns about the federalism 
implications of this rulemaking from these representatives or from any 
other representatives of State government.
    However, if adopted, this proposed rule could have preemptive 
effect by operation of law under 49 U.S.C. 20106 (Sec. 20106). Section 
20106 provides that States may not adopt or continue in effect any law, 
regulation, or order related to railroad safety or security that covers 
the subject matter of a regulation prescribed or order issued by the 
Secretary of Transportation (with respect to railroad safety matters) 
or the Secretary of Homeland Security (with respect to railroad 
security matters), except when the State law, regulation, or order 
qualifies under the ``local safety or security hazard'' exception to 
section 20106.
    In sum, FRA has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this proposed rule has no 
federalism implications, other than the possible preemption of State 
laws under Sec. 20106. Accordingly, FRA has determined that preparation 
of a federalism summary impact statement for this proposed rule is not 
required.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent

[[Page 64268]]

that such regulations incorporate requirements specifically set forth 
in law).'' Section 202 of the Act (2 U.S.C. 1532) further requires that 
``before promulgating any general notice of proposed rulemaking that is 
likely to result in the promulgation of any rule that includes any 
Federal mandate that may result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more (adjusted annually for inflation) [currently 
$143,100,000 in 2010 dollars] in any 1 year, and before promulgating 
any final rule for which a general notice of proposed rulemaking was 
published, the agency shall prepare a written statement'' detailing the 
effect on State, local, and tribal governments and the private sector. 
This NPRM will not result in the expenditure, in the aggregate, of 
$143,100,000 in 2010 dollars or more in any one year, and thus 
preparation of such a statement is not required

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' See 
66 FR 28355 (May 22, 2001). Under the Executive Order a ``significant 
energy action'' is defined as any action by an agency that promulgates 
or is expected to lead to the promulgation of a final rule or 
regulation, including notices of inquiry, advance notices of proposed 
rulemaking, and notices of proposed rulemaking: (1)(i) That is a 
significant regulatory action under Executive Order 12866 or any 
successor order, and (ii) is likely to have a significant adverse 
effect on the supply, distribution, or use of energy; or (2) that is 
designated by the Administrator of the Office of Information and 
Regulatory Affairs as a significant energy action. FRA has evaluated 
this NPRM in accordance with Executive Order 13211. FRA has determined 
that this NPRM is not likely to have a significant adverse effect on 
the supply, distribution, or use of energy. Consequently, FRA has 
determined that this NPRM is not a ``significant energy action'' within 
the meaning of the Executive Order.

H. Privacy Act Statement

    Anyone is able to search the electronic form of all comments 
received into any of DOT's dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). Please visit http://www.regulations.gov/#!privacyNotice. You may review DOT's complete 
Privacy Act Statement published in the Federal Register on April 11, 
2000 (Volume 65, Number 70, Pages 19477-78), or you may visit http://
www.dot.gov/privacy.html.

List of Subjects in 49 CFR Part 213

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

The Proposed Rule

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

PART 213--[AMENDED]

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

    Authority:  49 U.S.C. 20102-20114 and 20142; Sec. 403, Div. A, 
Pub. L. 110-432, 122 Stat. 4885; 28 U.S.C. 2461, note; and 49 CFR 
1.49.

Subpart A--General

    2. Section 213.3 is amended by revising paragraph (b) to read as 
follows:


Sec.  213.3  Application.

* * * * *
    (b) This part does not apply to track--
    (1) Used exclusively for rapid transit operations in an urban area 
that are not connected to the general railroad system of 
transportation.
    (2) Located inside an installation that is not part of the general 
railroad system of transportation (i.e., a plant railroad). As used in 
this part, plant railroad means a plant or installation that owns or 
leases a locomotive, uses that locomotive to switch cars throughout the 
plant or installation, and is moving goods solely for use in the 
facility's own industrial processes. The plant or installation could 
include track immediately adjacent to the plant or installation if the 
plant railroad leases the track from the general system railroad and 
the lease provides for (and actual practice entails) the exclusive use 
of that track by the plant railroad and the general system railroad for 
purposes of moving only cars shipped to or from the plant. A plant or 
installation that operates a locomotive to switch or move cars for 
other entities, even if solely within the confines of the plant or 
installation, rather than for its own purposes or industrial processes, 
will not be considered a plant railroad because the performance of such 
activity makes the operation part of the general railroad system of 
transportation. Similarly, this exclusion does not apply to track over 
which a general system railroad operates, even if that track is located 
within a plant railroad.

Subpart D--Track Structure

    3. Section 213.113 is revised to read as follows:


Sec.  213.113  Defective rails.

    (a) When an owner of track learns that a rail in the track contains 
any of the defects listed in the table contained in paragraph (c) of 
this section, a person designated under Sec.  213.7 shall determine 
whether the track may continue in use. If the designated person 
determines that the track may continue in use, operation over the 
defective rail is not permitted until--
    (1) The rail is replaced or repaired; or
    (2) The remedial action prescribed in the table contained in 
paragraph (c) of this section is initiated.
    (b) When an owner of track learns that a rail in the track contains 
an indication of any of the defects listed in the table contained in 
paragraph (c) of this section, the track owner shall verify the 
indication. The track owner must verify the indication within four 
hours, unless the track owner has an indication of the existence of the 
defects that require remedial action A, A2, or B identified in the 
table contained in paragraph (c) of this section, in which case the 
track owner must immediately verify the indication. If the indication 
is verified, the track owner must--
    (1) Replace or repair the rail; or
    (2) Initiate the remedial action prescribed in the table contained 
in paragraph (c) of this section.
    (c) Remedial action table. A track owner who learns that a rail 
contains one of the following defects shall prescribe the remedial 
action specified if the rail is not replaced or repaired:

[[Page 64269]]



                                                                  Remedial Action Table
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               Length of defect (inch(es))              Percentage of existing rail head cross-    If the defective rail
                                    ------------------------------------------------       sectional area weakened by defect        is not  replaced or
               Defect                                                               ----------------------------------------------   repaired, take the
                                            More than           But not more than                                                     remedial action
                                                                                           Less than          But not less than      prescribed in note
--------------------------------------------------------------------------------------------------------------------------------------------------------
Compound Fissure...................  ......................  ......................  70...................  5....................  B.
                                     ......................  ......................  100..................  70...................  A2.
                                     ......................  ......................  .....................  100..................  A.
Transverse Fissure.................  ......................  ......................  25...................  5....................  C.
Detail Fracture....................  ......................  ......................  60...................  25...................  D.
Engine Burn Fracture...............  ......................  ......................  100..................  60...................  A2, or [E and H].
Defective Weld.....................  ......................  ......................  .....................  100..................  A, or [E and H].
Horizontal Split Head
Vertical Split Head
    Split Web......................  1.....................  2.....................  .....................  .....................  H and F.
    Piped Rail.....................  2.....................  4.....................  .....................  .....................  I and G.
    Head Web Separation............  4.....................  ......................  .....................  .....................  B.
    Defective Weld (Longitudinal)..  (1)...................  (1)...................  .....................  .....................  A.
Bolt Hole Crack....................  \3/4\.................  1.....................  .....................  .....................  H and F.
                                     1.....................  1\1/2\................  .....................  .....................  H and G.
                                     1.....................  ......................  .....................  .....................  B.
                                     1\1/2\................
                                     (\1\).................  (\1\).................  .....................  .....................  A.
Broken Base........................  1.....................  6.....................  .....................  .....................  D.
                                     6 \2\.................  ......................  .....................  .....................  A, or [E and I].
Ordinary Break.....................  ......................  ......................  .....................  .....................  A or E.
Damaged Rail.......................  ......................  ......................  .....................  .....................  C.
Flattened Rail Crushed Head........  Depth > \3/8\ and       ......................  .....................  .....................  H.
                                      Length > 8.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Break out in rail head.
\2\ Remedial action D applies to a moon-shaped breakout, resulting from a derailment, with length greater than 6 inches but not exceeding 12 inches and
  width not exceeding one-third of the rail base width.

    Notes:
    A. Assign a person designated under Sec.  213.7 to visually 
supervise each operation over the defective rail.
    A2. Assign a person designated under Sec.  213.7 to make a visual 
inspection. After a visual inspection, that person may authorize 
operation to continue without continuous visual supervision at a 
maximum of 10 m.p.h. for up to 24 hours prior to another such visual 
inspection or replacement or repair of the rail.
    B. Limit operating speed over the defective rail to that as 
authorized by a person designated under Sec.  213.7(a), who has at 
least one year of supervisory experience in railroad track maintenance. 
The operating speed cannot be over 30 m.p.h. or the maximum allowable 
speed under Sec.  213.9 for the class of track concerned, whichever is 
lower.
    C. Apply joint bars bolted only through the outermost holes to the 
defect within 10 days after it is determined to continue the track in 
use. In the case of Class 3 through 5 track, limit the operating speed 
over the defective rail to 30 m.p.h. until joint bars are applied; 
thereafter, limit the speed to 50 m.p.h. or the maximum allowable speed 
under Sec.  213.9 for the class of track concerned, whichever is lower. 
When a search for internal rail defects is conducted under Sec.  
213.237, and defects are discovered in Class 3 through 5 track that 
require remedial action C, the operating speed shall be limited to 50 
m.p.h., or the maximum allowable speed under Sec.  213.9 for the class 
of track concerned, whichever is lower, for a period not to exceed 4 
days. If the defective rail has not been removed from the track or a 
permanent repair made within 4 days of the discovery, limit operating 
speed over the defective rail to 30 m.p.h. until joint bars are 
applied; thereafter, limit speed to 50 m.p.h. or the maximum allowable 
speed under Sec.  213.9 for the class of track concerned, whichever is 
lower. When joint bars have not been applied within 10 days, the speed 
must be limited to 10 m.p.h. until joint bars are applied.
    D. Apply joint bars bolted only through the outermost holes to 
defect within 7 days after it is determined to continue the track in 
use. In the case of Class 3 through 5 track, limit operating speed over 
the defective rail to 30 m.p.h. or less as authorized by a person 
designated under Sec.  213.7(a), who has at least one year of 
supervisory experience in railroad track maintenance, until joint bars 
are applied; thereafter, limit speed to 50 m.p.h. or the maximum 
allowable speed under Sec.  213.9 for the class of track concerned, 
whichever is lower. When joint bars have not been applied within 7 
days, the speed must be limited to 10 m.p.h. until the joint bars are 
applied.
    E. Apply joint bars to the defect and bolt in accordance with Sec.  
213.121(d) and (e).
    F. Inspect the rail within 90 days after it is determined to 
continue the track in use. If the rail remains in track and is not 
replaced or repaired, the reinspection cycle starts over with each 
successive reinspection unless the reinspection reveals the rail defect 
to have increased in size and therefore become subject to a more 
restrictive remedial action. This process continues indefinitely until 
the rail is removed from the track or repaired. If not inspected within 
90 days, limit speed to that for Class 2 track or the maximum allowable 
speed under Sec.  213.9 for the class of track concerned, whichever is 
lower, until it is inspected.
    G. Inspect rail within 30 days after it is determined to continue 
the track in use. If the rail remains in the track and is not replaced 
or repaired, the reinspection cycle starts over with each successive 
reinspection unless the

[[Page 64270]]

reinspection reveals the rail defect to have increased in size and 
therefore become subject to a more restrictive remedial action. This 
process continues indefinitely until the rail is removed from the track 
or repaired. If not inspected within 30 days, limit speed to that for 
Class 2 track or the maximum allowable speed under Sec.  213.9 for the 
class of track concerned, whichever is lower, until it is inspected.
    H. Limit operating speed over the defective rail to 50 m.p.h. or 
the maximum allowable speed under Sec.  213.9 for the class of track 
concerned, whichever is lower.
    I. Limit operating speed over the defective rail to 30 m.p.h. or 
the maximum allowable speed under Sec.  213.9 for the class of track 
concerned, whichever is lower.
    (d) As used in this section--
    (1) Bolt hole crack means a crack across the web, originating from 
a bolt hole, and progressing on a path either inclined upward toward 
the rail head or inclined downward toward the base. Fully developed 
bolt hole cracks may continue horizontally along the head/web or base/
web fillet, or they may progress into and through the head or base to 
separate a piece of the rail end from the rail. Multiple cracks 
occurring in one rail end are considered to be a single defect. 
However, bolt hole cracks occurring in adjacent rail ends within the 
same joint must be reported as separate defects.
    (2) Broken base means any break in the base of the rail.
    (3) Compound fissure means a progressive fracture originating from 
a horizontal split head that turns up or down, or in both directions, 
in the head of the rail. Transverse development normally progresses 
substantially at a right angle to the length of the rail.
    (4) Crushed head means a short length of rail, not at a joint, 
which has drooped or sagged across the width of the rail head to a 
depth of \3/8\ inch or more below the rest of the rail head and 8 
inches or more in length. Unlike flattened rail where the depression is 
visible on the rail head only, the sagging or drooping is also visible 
in the head/web fillet area.
    (5) Damaged rail means any rail broken or otherwise damaged by a 
derailment, broken, flat, or unbalanced wheel, wheel slipping, or 
similar causes.
    (6) Defective weld means a field or plant weld containing any 
discontinuities or pockets, exceeding 5 percent of the rail head area 
individually or 10 percent in the aggregate, oriented in or near the 
transverse plane, due to incomplete penetration of the weld metal 
between the rail ends, lack of fusion between weld and rail end metal, 
entrainment of slag or sand, under-bead or shrinkage cracking, or 
fatigue cracking. Weld defects may originate in the rail head, web, or 
base, and in some cases, cracks may progress from the defect into 
either or both adjoining rail ends. If the weld defect progresses 
longitudinally through the weld section, the defect is considered a 
split web for purposes of remedial action required by this section.
    (7) Detail fracture means a progressive fracture originating at or 
near the surface of the rail head. These fractures should not be 
confused with transverse fissures, compound fissures, or other defects 
which have internal origins. Detail fractures may arise from shelled 
spots, head checks, or flaking.
    (8) Engine burn fracture means a progressive fracture originating 
in spots where driving wheels have slipped on top of the rail head. In 
developing downward they frequently resemble the compound or even 
transverse fissures with which they should not be confused or 
classified.
    (9) Flattened rail means a short length of rail, not at a joint, 
which has flattened out across the width of the rail head to a depth of 
\3/8\ inch or more below the rest of the rail and 8 inches or more in 
length. Flattened rail occurrences have no repetitive regularity and 
thus do not include corrugations, and have no apparent localized cause 
such as a weld or engine burn. Their individual length is relatively 
short, as compared to a condition such as head flow on the low rail of 
curves.
    (10) Head and web separation means a progressive fracture, 
longitudinally separating the head from the web of the rail at the head 
fillet area.
    (11) Horizontal split head means a horizontal progressive defect 
originating inside of the rail head, usually \1/4\ inch or more below 
the running surface and progressing horizontally in all directions, and 
generally accompanied by a flat spot on the running surface. The defect 
appears as a crack lengthwise of the rail when it reaches the side of 
the rail head.
    (12) Ordinary break means a partial or complete break in which 
there is no sign of a fissure, and in which none of the other defects 
described in this paragraph (d) is found.
    (13) Piped rail means a vertical split in a rail, usually in the 
web, due to failure of the shrinkage cavity in the ingot to unite in 
rolling.
    (14) Split web means a lengthwise crack along the side of the web 
and extending into or through it.
    (15) Transverse fissure means a progressive crosswise fracture 
starting from a crystalline center or nucleus inside the head from 
which it spreads outward as a smooth, bright, or dark round or oval 
surface substantially at a right angle to the length of the rail. The 
distinguishing features of a transverse fissure from other types of 
fractures or defects are the crystalline center or nucleus and the 
nearly smooth surface of the development which surrounds it.
    (16) Vertical split head means a vertical split through or near the 
middle of the head, and extending into or through it. A crack or rust 
streak may show under the head close to the web or pieces may be split 
off the side of the head.
    4. Section 213.119 is amended by removing and reserving paragraph 
(h)(7)(ii) to read as follows:


Sec.  213.119  Continuous welded rail (CWR); plan contents.

* * * * *
    (h) * * *
    (7) * * *
    (ii) [Reserved]
* * * * *

Subpart F--Inspection

    5. Section 213.237 is revised to read as follows:


Sec.  213.237  Inspection of rail.

    (a) In addition to the inspections required by Sec.  213.233, a 
track owner shall conduct internal rail inspections sufficient to 
maintain service failure rates per rail inspection segment in 
accordance with this paragraph (a) for a 12-month period as determined 
by the track owner and calculated within 45 days of the end of the 
period. These rates shall not include service failures that occur in 
rail that has been replaced through rail relay since the time of the 
service failure. Rail used to repair a service failure defect is not 
considered rail relay. The service failure rates shall not exceed--
    (1) 0.1 service failure per year per mile of track for all Class 4 
and 5 track;
    (2) 0.09 service failure per year per mile of track for all Class 
3, 4, and 5 track that carries regularly-scheduled passenger trains or 
is a hazardous material route; and
    (3) 0.08 service failure per year per mile of track for all Class 
3, 4, and 5 track that carries regularly-scheduled passenger trains and 
is a hazardous material route.
    (b) Each rail inspection segment shall be designated by the track 
owner no later than [DATE 60 DAYS AFTER DATE OF PUBLICATION OF THE 
FINAL RULE IN THE Federal Register]

[[Page 64271]]

for track that is Class 4 or 5 track, or Class 3 track that carries 
regularly-scheduled passenger trains or is a hazardous material route 
and is used to determine the milepost limits for the individual rail 
inspection frequency.
    (1) To change the designation of a rail inspection segment or to 
establish a new segment pursuant to this section, a track owner may 
submit a detailed request to the FRA Associate Administrator for 
Railroad Safety/Chief Safety Officer (Associate Administrator). Within 
30 days of receipt of the submission, FRA will review the request. FRA 
will approve, disapprove or conditionally approve the submitted 
request, and will provide written notice of its determination.
    (2) The track owner's existing designation shall remain in effect 
until the track owner's new designation is approved or conditionally 
approved by FRA.
    (3) The track owner shall, upon receipt of FRA's approval or 
conditional approval, establish the designation's effective date. The 
track owner shall advise in writing FRA and all affected railroad 
employees of the effective date.
    (c) Internal rail inspections on Class 4 and 5 track, or Class 3 
track with regularly-scheduled passenger trains or that is a hazardous 
materials route, shall not exceed a time interval of 370 days between 
inspections or a tonnage interval of 30 million gross tons (mgt) 
between inspections, whichever is shorter. Internal rail inspections on 
Class 3 track that is without regularly-scheduled passenger trains and 
not a hazardous materials route must be inspected at least once each 
calendar year, with no more than 18 months between inspections, or at 
least once every 30 mgt, whichever interval is longer, with the 
additional provision that inspections cannot be more than 5 years 
apart.
    (1) Any rail used as a replacement plug rail in track that is 
required to be tested in accordance with this section must have been 
tested for internal rail flaws.
    (2) The track owner must be able to verify that the plug rail has 
not accumulated more than a total of 30 mgt in previous and new 
locations since its last internal rail flaw test, before the next test 
on the rail required by this section is performed.
    (3) If plug rail not in compliance with paragraphs (c)(1) and (2) 
of this section is in use after [DATE OF PUBLICATION OF THE FINAL RULE 
IN THE Federal Register], trains over that rail must not exceed Class 2 
speeds until the rail is tested in accordance with this section.
    (d) If the service failure rate target identified in paragraph (a) 
of this section is not achieved, the track owner must inform FRA of 
this fact within 45 days of the end of the defined 12-month period in 
which the performance target is exceeded. In addition, the owner may 
provide to FRA an explanation as to why the performance target was not 
achieved and provide a remedial action plan.
    (1) If the performance target rate is not met for two consecutive 
years, then for the area where the greatest number of service failures 
is occurring, either:
    (i) The inspection tonnage interval between tests must be reduced 
to 10 mgt; or
    (ii) The class of track must be reduced to Class 2 until the target 
service failure rate is achieved.
    (2) In cases where a single service failure would cause the rate to 
exceed the applicable service failure rate as designated in paragraph 
(a) of this section, the service failure rate will be considered to 
comply with paragraph (a) of this section unless a second such failure 
occurs within a designated 12-month period.
    (3) For the purposes of paragraph (d)(2) of this section, a period 
begins no earlier than [DATE OF PUBLICATION OF THE FINAL RULE IN THE 
Federal Register].
    (e) Each defective rail shall be marked with a highly visible 
marking on both sides of the web and base except that, where a side or 
sides of the web and base are inaccessible because of permanent 
features, the highly visible marking shall be placed on or next to the 
head of the rail.
    (f) Inspection equipment shall be capable of detecting defects 
between joint bars, in the area enclosed by joint bars.
    (g) If the qualified rail defect detection equipment operator 
determines that a valid search for internal defects could not be made 
over a particular length of track, that particular length of track may 
not be considered as internally inspected under paragraphs (a) and (c) 
of this section.
    (h) If a valid search for internal defects cannot be conducted, the 
track owner shall, before expiration of the time or tonnage limits in 
paragraphs (a) or (c) of this section--
    (1) Conduct a valid search for internal defects;
    (2) Reduce operating speed to a maximum of 25 m.p.h. until such 
time as a valid search can be made; or
    (3) Replace the rail that had not been inspected.
    (i) The person assigned to operate the rail defect detection 
equipment must be a qualified operator as defined in Sec.  213.238 and 
have demonstrated proficiency in the rail flaw detection process for 
each type of equipment the operator is assigned.
    (j) As used in this section--
    (1) Hazardous materials route means any track of any class over 
which a minimum of 10,000 car loads or intermodal portable tank car 
loads of hazardous material as defined in 49 CFR 171.8 travel over a 
period of one year; or Class 3, 4 or 5 track over which a minimum of 
4,000 car loads or intermodal portable tank car loads of the hazardous 
material specified in 49 CFR 172.820 travel, in a period of one year.
    (2) Plug rail means a length of rail that has been removed from one 
track location and stored for future use as a replacement rail at 
another location.
    (3) Service failure means a broken rail occurrence, the cause of 
which is determined to be a compound fissure, transverse fissure, 
detail fracture, or vertical split head.
    (4) Valid search means a continuous inspection for internal rail 
defects where the equipment is performing as intended and equipment 
responses are interpreted by a qualified operator as defined in Sec.  
213.238.
    6. Section 213.238 is added to read as follows:


Sec.  213.238  Qualified operator.

    (a) Each track owner or railroad conducting rail flaw detection 
shall have a documented training program in place and shall identify 
the types of rail flaw detection equipment for which each operator has 
received training and is qualified.
    (b) A qualified operator shall be trained and shall have written 
authorization by the employing track owner or railroad (employer) to:
    (1) Conduct a valid search for internal rail defects utilizing the 
specific type(s) of equipment for which he or she is authorized and 
qualified to operate;
    (2) Determine that such equipment is performing as intended;
    (3) Interpret equipment responses and institute appropriate action 
in accordance with the employer's procedures and instructions; and
    (4) Determine that each valid search for an internal rail defect is 
continuous throughout the area inspected and has not been compromised 
due to environmental contamination, rail conditions, or equipment 
malfunction.
    (c) The operator must have received training in accordance with the 
documented training program and a minimum of 160 hours of rail flaw 
detection experience under direct supervision of a qualified operator 
or

[[Page 64272]]

rail flaw detection equipment manufacturer's representative. The 
operator must demonstrate proficiency in the rail defect detection 
process, including the equipment to be utilized, prior to initial 
qualification and authorization by the employer for each type of 
equipment.
    (d) Each employer shall reevaluate the qualifications of, and 
administer any necessary recurrent training for, the operator as 
determined by and in accordance with the employer's documented program. 
The reevaluation and recurrent training may consist of a periodic 
review of test data submitted by the operator. The reevaluation process 
shall require that the employee successfully complete a recorded 
examination and demonstrate proficiency to the employer on the specific 
equipment type(s) to be operated.
    (e) Each employer of a qualified operator shall maintain written or 
electronic records of each qualification in effect. Each record shall 
include the name of the employee, the equipment to which the 
qualification applies, date of qualification, and date of the most 
recent reevaluation, if any.
    (f) Any employee who has demonstrated proficiency in the operation 
of rail flaw detection equipment prior to [DATE OF PUBLICATION OF THE 
FINAL RULE IN THE Federal Register], is deemed a qualified operator, 
regardless of the previous training program under which the employee 
was qualified. Such an operator shall be subject to paragraph (d) of 
this section.
    (g) Records concerning the qualification of operators, including 
copies of equipment[hyphen]specific training programs and materials, 
recorded examinations, demonstrated proficiency records, and 
authorization records, shall be kept at a location designated by the 
employer and available for inspection and copying by FRA during regular 
business hours.
    7. Section 213.241 is amended by redesignating paragraphs (d) and 
(e) as (f) and (g), by revising paragraph (c), by adding paragraphs (d) 
and (e), and by revising newly redesignated paragraphs (f) and (g) to 
read as follows:


Sec.  213.241  Inspection records.

* * * * *
    (c) Records of internal rail inspections required by Sec.  213.237 
shall specify the--
    (1) Date of inspection;
    (2) Track inspected, including beginning and end points;
    (3) Location and type of defects found under Sec.  213.113;
    (4) Size of defects found under Sec.  213.113, if not removed prior 
to the next train movement;
    (5) Initial remedial action taken and the date thereof; and
    (6) Location of any track not tested pursuant to Sec.  213.237(g).
    (d) The track owner shall retain a rail inspection record under 
paragraph (c) of this section for at least two years after the 
inspection and for one year after initial remedial action is taken.
    (e) The track owner shall maintain records sufficient to 
demonstrate the means by which it computes the service failure rate on 
all track segments subject to the requirements of Sec.  213.237(a) for 
the purpose of determining compliance with the applicable service 
failure rate target.
    (f) Each track owner required to keep inspection records under this 
section shall make those records available for inspection and copying 
by FRA upon request.
    (g) For purposes of complying with the requirements of this 
section, a track owner may maintain and transfer records through 
electronic transmission, storage, and retrieval provided that--
    (1) The electronic system is designed so that the integrity of each 
record is maintained through appropriate levels of security such as 
recognition of an electronic signature, or another means, which 
uniquely identifies the initiating person as the author of that record. 
No two persons shall have the same electronic identity;
    (2) The electronic storage of each record shall be initiated by the 
person making the inspection within 24 hours following the completion 
of that inspection;
    (3) The electronic system shall ensure that each record cannot be 
modified in any way, or replaced, once the record is transmitted and 
stored;
    (4) Any amendment to a record shall be electronically stored apart 
from the record which it amends. Each amendment to a record shall be 
uniquely identified as to the person making the amendment;
    (5) The electronic system shall provide for the maintenance of 
inspection records as originally submitted without corruption or loss 
of data;
    (6) Paper copies of electronic records and amendments to those 
records that may be necessary to document compliance with this part 
shall be made available for inspection and copying by FRA at the 
locations specified in paragraph (b) of this section; and
    (7) Track inspection records shall be kept available to persons who 
performed the inspections and to persons performing subsequent 
inspections.

    Issued in Washington, DC, on October 12, 2012.
Karen J. Hedlund,
Deputy Administrator.
[FR Doc. 2012-25620 Filed 10-18-12; 8:45 am]
BILLING CODE 4910-06-P