Rail Integrity Amendments & Track Safety Standards

 
CONTENT
Federal Register, Volume 84 Issue 250 (Tuesday, December 31, 2019)
[Federal Register Volume 84, Number 250 (Tuesday, December 31, 2019)]
[Proposed Rules]
[Pages 72526-72552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27748]
[[Page 72525]]
Vol. 84
Tuesday,
No. 250
December 31, 2019
Part III
Department of Transportation
-----------------------------------------------------------------------
Federal Railroad Administration
-----------------------------------------------------------------------
49 CFR Part 213
Rail Integrity Amendments & Track Safety Standards; Proposed Rule
Federal Register / Vol. 84 , No. 250 / Tuesday, December 31, 2019 /
Proposed Rules
[[Page 72526]]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 213
[Docket No. FRA-2018-0104]
RIN 2130-AC53
Rail Integrity Amendments & Track Safety Standards
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: FRA is proposing to revise its regulations governing the
minimum safety requirements for railroad track. The proposed changes
include allowing inspection of rail using continuous rail testing;
allowing the use of flange-bearing frogs in crossing diamonds; relaxing
the guard check gage limits on heavy-point frogs used in Class 5 track;
removing an inspection-method exception for high-density commuter
lines; and other miscellaneous revisions. Overall, the proposed
revisions would benefit track owners, railroads, and the public by
reducing unnecessary costs and incentivizing innovation, while not
negatively affecting rail safety.
DATES: Written comments must be received by March 2, 2020. Comments
received after that date will be considered to the extent possible
without incurring additional expense or delay.
ADDRESSES: Comments: Comments related to Docket No. FRA-2018-0104 may
be submitted by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting
comments;
     Mail: Docket Management Facility, U.S. DOT, 1200 New
Jersey Avenue SE, W12-140, Washington, DC 20590;
     Hand Delivery: The Docket Management Facility is located
in Room W12-140, West Building Ground Floor, U.S. DOT, 1200 New Jersey
Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays; or
     Fax: 202-493-2251.
    Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking (2130-AC53). All comments received will be posted without
change to http://www.regulations.gov; this includes any personal
information. Please see the Privacy Act heading in the SUPPLEMENTARY
INFORMATION section of this document for Privacy Act information
related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov and follow the
online instructions for accessing the docket or visit the Docket
Management Facility described above.
FOR FURTHER INFORMATION CONTACT: Matthew Brewer, Staff Director, Rail
Integrity Division, Office of Railroad Safety, Federal Railroad
Administration, 500 East Broadway, Suite 240, Vancouver, WA 98660,
telephone: 202-385-2209; Yu-Jiang Zhang, Staff Director, Track
Division, Office of Railroad Safety, Federal Railroad Administration,
1200 New Jersey Avenue SE, W33-302, Washington, DC 20590, telephone:
202-493-6460; or Aaron Moore, Attorney, Office of Chief Counsel,
Federal Railroad Administration, 1200 New Jersey Avenue SE, W31-216,
Washington, DC 20590, telephone: 202-493-7009.
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Executive Summary
II. Rulemaking Authority and Background
III. Development of the NPRM
IV. Summary of Major Provisions of the NPRM
    A. Proposal To Allow Continuous Rail Testing
    B. Proposal To Remove High-Density Commuter Line Exception
    C. Incorporation of Flange-Bearing Frog and Heavy-Point Frog
Waivers
    i. Heavy-Point Frogs
    ii. Flange-Bearing Frog Crossing Diamonds
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
    A. Executive Order 12866, and DOT Regulatory Policies and
Procedures
    B. Regulatory Flexibility Act
    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
    Beginning in 2015, the Track Safety Standards Working Group (TSS
Working Group) of the Railroad Safety Advisory Committee (RSAC) met
numerous times to ``consider specific improvements to the Track Safety
Standards . . . designed to enhance rail safety by improving track
inspection methods, frequency, and documentation.'' As detailed below,
FRA's proposals in this NPRM are, in part, a direct result of the
RSAC's recommendations and of FRA's own review and analysis of the
Track Safety Standards (TSS or Standards) (49 CFR part 213). To
streamline and ensure its regulations are as up to date as practicable,
FRA periodically reviews and proposes amendments to its regulations.
Various Executive Orders (for example, President Trump's Executive
Order 13771, discussed in more detail below in section II) also
encourage or require such review with an emphasis on cost savings. This
NPRM is responsive to those Executive Orders.
    In this NPRM, FRA proposes to amend subparts A, D, F, and G of the
TSS to (1) allow for continuous rail testing, (2) incorporate
longstanding waivers related to track frogs, (3) remove the exception
for high-density commuter lines from certain track inspection method
requirements, and (4) incorporate several consensus-based, RSAC
recommendations.
    FRA proposes to amend part 213 to allow for what is commonly
referred to as ``continuous rail testing.'' Although the Rail Integrity
Working Group did not reach consensus on specific, recommended
regulatory text, FRA's proposal to allow continuous rail testing is
based, in part, on information garnered from the Working Group's
discussions of the issue. Generally, continuous rail testing differs
from the traditional stop-and-verify rail inspection process, which
involves an operator riding in a test vehicle traveling over the rail
and reviewing test data in real-time as the vehicle collects it,
including stopping the vehicle to verify indications of possible rail
defects. Continuous rail testing, on the other hand, is a rail
inspection process that tests the rail non-stop along a designated
route, collecting the rail inspection data and transmitting it to an
analyst at a centralized location for review and categorization of
suspected rail flaws that are subsequently field-verified. To enable
this process, FRA proposes that those entities electing to use
continuous rail testing be exempt from the current requirement that
certain indications of suspected rail defects be immediately verified
and all other indications be field-verified within four hours. Instead,
FRA proposes to extend the verification period to allow the data to be
analyzed off-site but still require field verification within a
specified period (i.e., between 24 and 84 hours, depending on the type
of defect). Since 2011, multiple railroads have conducted pilot
projects to test and evaluate the effectiveness of the continuous rail
testing process. FRA believes that allowing continuous
[[Page 72527]]
testing will enhance the effectiveness of the rail testing process
while decreasing the economic cost to the industry.
    FRA also proposes to incorporate two existing waivers into part
213, to provide additional flexibility in the use of track frogs. A
frog is a track component used at the intersection of two running rails
to provide support for wheels and passage for their flanges, thus
permitting wheels on either rail to cross the other intersecting rail.
As explained in more detail below, FRA has approved a waiver to allow
railroads to use heavy-point frogs in Class 5 track that do not comply
with the current minimum guard check gage limit. A heavy-point frog is
a unique design that has a thicker frog point. Under the current
waiver, those heavy-point frogs in Class 5 track are instead permitted
to meet the minimum guard check gage limit for Class 4 track.
Additionally, FRA has issued a waiver allowing the railroad industry to
utilize flange-bearing-frog crossing diamonds that do not comply with
the flangeway depth requirements in 49 CFR 213.137(a). Flange-bearing-
frog crossing diamonds are different from traditional tread-bearing
frogs in that they are designed to support wheels running on their
flanges. Both waivers have been in place for an extended period of time
and both heavy-point frogs and flange-bearing-frog crossing diamonds
have been safe under them.
    In response to National Transportation Safety Board (NTSB) Safety
Recommendation R-14-11 and sec. 11409 of the Fixing America's Surface
Transportation Act, Public Law 114-94, 129 Stat. 1686 (Dec. 4, 2015)
(FAST Act), FRA also proposes to remove the exception in 49 CFR
213.233(b)(3) concerning the manner of inspecting high-density commuter
lines. Section 213.233(b)(3) normally requires each main track be
traversed by vehicle or inspected on foot at least once every two
weeks, and each siding be traversed by vehicle or inspected on foot at
least once every month. Section 213.233(b)(3) exempts high-density
commuter lines where track time does not permit on-track vehicle
inspection and where track centers are 15 feet or less apart, but FRA
is not aware of any railroads utilizing this exception and, as
discussed below, agrees that in the interest of safety the exception
should be removed.
    FRA also proposes other miscellaneous revisions to part 213 (e.g.,
revising qualification requirements for certain railroad employees,
adjusting recordkeeping requirements, etc.), many of which are based on
consensus recommendations of the TSS Working Group. FRA proposes to
adopt these consensus recommendations with generally minor changes for
purposes of clarity, formatting, and consistency. Those proposed
revisions are discussed in more detail below.
    FRA analyzed the economic impact of this proposed rule over a 10-
year period and estimated its costs and cost savings. If railroad track
owners choose to take advantage of the cost savings from this proposed
rule, they would incur additional labor costs associated with
continuous rail testing. These costs are voluntary because railroad
track owners would only incur them if they choose to operate continuous
rail testing vehicles. The following table shows the net cost savings
of this proposed rule, over the 10-year analysis.
                                          Net Cost Savings, in Millions
                                                 [2018 dollars]
----------------------------------------------------------------------------------------------------------------
                                                   Present value   Present value
                                                        7%              3%         Annualized 7%   Annualized 3%
----------------------------------------------------------------------------------------------------------------
Costs...........................................           $25.9           $31.4            $3.7            $3.7
Cost Savings....................................           148.7           180.3            21.2            21.1
                                                 ---------------------------------------------------------------
    Net Cost Savings............................           122.8           148.9            17.5            17.4
----------------------------------------------------------------------------------------------------------------
    This proposed rule would result in cost savings for railroad track
owners. The cost savings are in the table below.
                                            Cost Savings, in Millions
                                       [Over a 10-year period of analysis]
----------------------------------------------------------------------------------------------------------------
                                                   Present value   Present value
                     Section                            7%              3%         Annualized 7%   Annualized 3%
----------------------------------------------------------------------------------------------------------------
Flange Bearing Frog Inspections.................          $0.191          $0.223          $0.027          $0.026
Frog Waiver Savings.............................           0.013           0.016           0.002           0.002
Continuous Testing Labor Cost Savings...........           7.086           8.590           1.009           1.007
Slow Orders.....................................         141.329         171.340          20.122          20.086
Continuous Testing Waiver Savings...............           0.130           0.154           0.012           0.010
                                                 ---------------------------------------------------------------
    Total.......................................         148.749         180.324          21.172          21.132
----------------------------------------------------------------------------------------------------------------
    The table below presents the estimated costs, over the 10-year
analysis.
[[Page 72528]]
                                          Estimated Costs, in Millions
                                       [Over a 10-year period of analysis]
----------------------------------------------------------------------------------------------------------------
                                               Present value    Present value
                                                     7%               3%         Annualized 7%    Annualized 3%
----------------------------------------------------------------------------------------------------------------
Continuous Testing..........................           $25.9            $31.4             $3.7             $3.7
----------------------------------------------------------------------------------------------------------------
II. Rulemaking Authority and Background
    On January 30, 2017, President Trump issued Executive Order (E.O.)
13771. E.O. 13771 seeks to ``manage the costs associated with the
governmental imposition of private expenditures required to comply with
Federal regulations'' and directs each executive department or agency
to identify for elimination two existing regulations for every new
regulation issued. E.O. 13771 also requires any new incremental cost
associated with a new regulation, to the extent permitted by law, be at
least offset by the elimination of existing costs associated with at
least two prior regulations. Similarly, E.O. 13610 (Identifying and
Reducing Regulatory Burdens, issued May 12, 2012), seeks ``to modernize
our regulatory system and to reduce unjustified regulatory burdens and
costs'' and directs each executive agency to conduct retrospective
reviews of its regulatory requirements to identify potentially
beneficial modifications to regulations. 77 FR 28469. Executive
agencies are to ``give priority, consistent with the law, to those
initiatives that will produce significant quantifiable monetary savings
or significant quantifiable reductions in paperwork burdens while
protecting public health, welfare, safety and our environment.'' See
id. at 28470.
    In response to E.O. 13771, FRA initiated a review of its existing
regulations with the goal of identifying regulations that it could
amend or eliminate to reduce the overall regulatory, paperwork, and
cost burden on entities subject to FRA jurisdiction. FRA identified
part 213 as a regulation FRA could amend and thereby reduce the
railroad industry's overall regulatory and cost burden without
negatively affecting safety. Also, in response to a DOT request for
public comment on existing rules ripe for repeal or modification, the
Association of American Railroads and other industry participants
encouraged FRA to revise part 213 to allow for the use of innovations
in rail inspection technology, specifically the use of non-stop rail
inspection vehicles. See docket number DOT-OST-2017-0069 (available
online at www.regulations.gov). This rule responds to those comments by
proposing to provide railroads with the flexibility to use continuous
rail testing in a way that will facilitate operational efficiency and
enhance safety.
    Section 20103 of title 49 of the United States Code (U.S.C.)
provides that, ``[t]he Secretary of Transportation, shall prescribe
regulations and issue orders for every area of railroad safety.'' This
statutory section codifies the authority granted to the Secretary of
Transportation under the Federal Railroad Safety Act of 1970. The
Secretary's authority to act under sec. 20103 is delegated to the
Federal Railroad Administrator. See 49 CFR 1.89.
    FRA published the first Standards on October 20, 1971. 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), which led to FRA issuing a final rule amending the Standards in
1998. See 63 FR 34029, June 22, 1998; 63 FR 54078, Oct. 8, 1998.
III. Development of the NPRM
    As noted above, the proposals in this NPRM are based, in part, on
the consensus recommendations of the TSS Working Group and, in part, on
FRA's own review and analysis. The RSAC provides a forum for developing
consensus recommendations and providing information to the
Administrator of FRA on rulemakings and other safety program issues,
and includes representatives from all the agency's major stakeholders.
The RSAC established the TSS Working Group on February 22, 2006, and it
met numerous times since formation and addressed multiple tasks and
issues. Beginning in 2015, one of those tasks involved some of the
revisions proposed in this NPRM. At the July 19-20, 2016 meeting, FRA
presented draft proposed revisions to part 213. Over the course of two
years and four additional meeting, the TSS Working Group discussed the
draft revisions in depth, considered draft revisions presented by other
members, and ultimately tailored the revisions to reflect the
suggestions and concerns of the TSS Working Group members. During the
March 13-14, 2018 meeting, the TSS Working Group unanimously
recommended proposed revisions, which form the basis for parts of this
NPRM. As proposed in this NPRM and discussed in more detail below,
these revisions include removal of the high-density commuter line
inspection-method exception, changes to qualification requirements for
certain railroad employees, and revisions to recordkeeping
requirements.
IV. Summary of Major Provisions of the NPRM
A. Proposal To Allow Continuous Rail Testing
    FRA sponsors railroad safety research, including research 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 maintenance practices that increase rail service life.
Generally, FRA's rail integrity research focuses on four distinct
areas: Analysis of rail defects; residual stresses in rail; strategies
for rail testing; and other related issues (e.g., advances in
nondestructive inspection techniques; feasibility of advanced materials
for rail, rail lubrication, rail grinding and wear; etc.). FRA's rail
integrity research is an ongoing effort, and is particularly important
as annual tonnages and average axle loads continue to increase on the
nation's railroads. For more discussion of rail integrity generally,
see FRA's 2014 final rule titled Track Safety Standards; Improving Rail
Integrity. 79 FR 4234, Jan. 24, 2014.
    One of the most important assets to the railroad industry is its
rail infrastructure. Historically, a primary concern of railroads has
been the probability of rail flaw development. Rail defects may take
many forms (e.g., rail head surface conditions and internal rail
flaws). If defects go undetected, they may grow to critical size,
potentially resulting in a broken rail and subsequent derailment.
Accordingly, to prevent rail defect development, railroads seek ways to
improve their rail maintenance practices, install more
[[Page 72529]]
wear-resistant rail, utilize improved flaw-detection technologies, and
increase rail inspection frequencies.
    The development of internal rail defects is an inevitable
consequence of the accumulation and effects of fatigue under repeated
loading. The direct cost of an undetected rail defect is the difference
between the cost of replacing the rail when a failure occurs, plus the
cost of any damage caused by the failure, which can be considerably
more than the cost of the planned replacement of detected defects
before they fail. Rail failures can have widespread and catastrophic
consequences, such as environmental damage and potential injury and
loss of life along with excessive service interruptions, and extensive
traffic rerouting. The challenge for the railroad industry is to avoid
the occurrence of rail service failure due to the presence of an
undetected defect.
    The effectiveness of a rail inspection program depends, in part, 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 allow for detection of defects
before they grow to critical size. Normal railroad operations can add
additional complexity to the rail inspection program. High traffic and
tonnage volumes can accelerate defect growth, while at the same time
decreasing the time available for rail inspection. Additionally, these
high volumes can lead to rail surface fatigue that may negatively
affect the ability of test equipment to see into the rail and thus
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.
    Current rail flaw 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;
     Stop-and-verify process, where a vehicle-based flaw
detection system tests at a slow speed (normally not exceeding 20
m.p.h.) gathering data that is presented to the operator on a test
monitor for interpretation and field verification;
     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 is one of the subjects
addressed in this NPRM and 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 the processes listed above are
the ultrasonic and induction methods. Ultrasonic technology is the
primary technology used, with induction technology currently used as a
complementary 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. Other conditions that can limit the effectiveness of
inspection include heavy lubrication or debris on the rail head.
    Induction testing introduces 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 the magnetic field, which will be detected by the search unit.
    Ultrasonic testing uses sound waves that propagate at a frequency
that is normally between 2.25 MHz (million cycles per second) to 5.0
MHz, above the range of human hearing. Ultrasonic waves are generated
into the rail by transducers 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 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.
    FRA is proposing to amend its regulations on inspection of rail and
verification of indications of defective rail to allow for continuous
rail testing. See proposed Sec.  213.240. The current regulations
require immediate verification of certain indications and require all
others be verified within 4 hours. 49 CFR 213.113(b). This verification
timeframe has made it practically impossible for track owners to
conduct continuous testing. Consistent with FRA's desire to improve
rail safety and encourage innovation that does the same, this proposed
rulemaking would establish procedures that, except for indications of a
broken rail, extend the required verification timeframes for those
entities that adopt continuous testing. FRA believes this would
facilitate operational efficiency and encourage both a broader scope
and more frequent use of rail testing in the industry.
    Although rail flaw detection is not an exact science, noncritical
rail flaw limits can be difficult to estimate, and numerous variables
affect rail flaw growth, FRA believes the procedures proposed in this
NPRM are sufficient to ensure the extended verification timeframes
would not result in complete rail failure prior to verification.
Continuous rail testing is a process that has been successfully trialed
under the waiver process outlined in 49 CFR 213.17 on select rail
segments on multiple railroads in the U.S. since 2009.\1\ In general,
FRA is authorized to waive compliance with its regulations if the
waiver ``is in the public interest and consistent with railroad
safety.'' 49 U.S.C. 20103(d). Under 49 CFR 213.17 and FRA's Rules of
Practice found at 49 CFR part 211, any person subject to FRA's safety
regulations can submit a petition for a waiver from those requirements.
FRA's Rules of Practice provide a process and outline the requirements
for waiver petitions. Each properly filed petition for a waiver is
referred to the FRA Railroad Safety Board (Board) for decision. See 49
CFR 211.41(a). The Board's decision is typically rendered after a
notice is published in the Federal Register and an opportunity for
public comment is provided. See 49 CFR 211.41. If the Board grants the
waiver request, the Board may impose conditions on the grant of relief
to ensure the decision is in the public interest and consistent with
railroad safety. This rulemaking would codify the continuous rail
testing practices FRA has permitted by waiver and allow for additional
flexibility in the rail inspection process. Track owners that do not
desire to conduct continuous rail
[[Page 72530]]
testing would not be affected by the proposal.
---------------------------------------------------------------------------
    \1\ See docket numbers FRA-2008-0111 (CSX), FRA-2011-0107 (CSX).
FRA-2014-0029 (CN), FRA-2015-0019 (NS), FRA-2015-0115 (KCS), FRA-
2015-0130 (BNSF), FRA-2018-0022 (UP), FRA-2018-0031 (LIRR), FRA-
2019-0057 (MNCW) (available online at www.regulations.gov).
---------------------------------------------------------------------------
    Further, FRA's proposal would provide additional flexibility in the
rail flaw detection processes to promote innovative approaches to
improving safety in railroad operations. Proposed Sec.  213.240 would
provide track owners the option to conduct continuous rail testing to
satisfy the rail inspection requirements in Sec.  213.237 or, where
applicable, Sec.  213.339. This proposed section would allow additional
time for verification of indications of potential rail flaws identified
through continuous testing. This additional time would allow for
improvements in planning and execution of rail inspections and rail
defect remediation, enabling track owners to conduct rail inspections
with less impact on railroad operations. By reducing the impact on the
rail network, more track time may become available to conduct
maintenance and increase inspections. However, as continuous testing is
a more complicated process compared to the traditional stop-and-verify
rail inspection process, additional criteria have been proposed to
ensure that this elective process is conducted in a manner that is in
the interests of safety and has sufficient recordkeeping and
transparency to allow for adequate FRA oversight.
    The proposed continuous rail test section would not modify the
requirements to inspect rail as set forth in Sec. Sec.  213.237 and
213.339, nor would it make any change to the remedial actions required
after field verification of a rail defect as described in Sec.
213.113(c).
B. Proposal To Remove High-Density Commuter Line Exception
    FRA is proposing to remove what is commonly referred to as the
``high-density commuter line exception'' from the track inspection
requirements in Sec.  213.233. This exception applies to ``high density
commuter railroad lines where track time does not permit on-track
vehicle inspection and where track centers are 15 feet or less apart''
and exempts those operations from 49 CFR 213.233(b)(3). Section
213.233(b)(3) requires each main track to be traversed by vehicle or
inspected on foot at least once every two weeks and each siding at
least once each month. Although other provisions of Sec.  213.233 do
require that such track be inspected, Sec.  213.233(b)(3) focuses on
the direct manner of conducting those inspections over or on the
subject track.
    On May 17, 2013, Metro-North Commuter Railroad (Metro-North)
passenger train 1548 was traveling eastbound from Grand Central
Station, New York, toward New Haven, Connecticut, when it derailed in
Bridgeport, Connecticut, and was struck by westbound Metro-North
passenger train 1581. The accident resulted in approximately 65
injuries and damages estimated at over $18 million. During the
investigation, a pair of broken compromise joint bars were found at the
point of derailment. One of those broken joint bars was located on the
gage side of the track over which train 1548 was traveling (main track
4). NTSB's investigation also found that Metro-North last inspected the
track in the area two days before the accident, but the inspection was
conducted by an inspector in a hi-rail vehicle traveling on main track
2, which was next to main track 4, and the joint bars in question would
not have been visible during that inspection. See NTSB's Railroad
Accident Brief, October 24, 2014, available at https://www.ntsb.gov/investigations/AccidentReports/Reports/RAB1409.pdf. In response to the
Bridgeport accident, NTSB issued Safety Recommendation R-14-11 to FRA,
which recommended that FRA revise the Standards, specifically Sec.
213.233(b)(3), to remove the high-density commuter line exception.
    Subsequently, in 2015, Congress passed the FAST Act, and mandated
in section 11409 that the Secretary of Transportation evaluate the
Standards to determine if the high-density commuter line exception
should be retained. After considering safety, system capacity, and
other relevant factors such as the views of the railroad industry and
relevant labor organizations, FRA has concluded, and the TSS Working
Group unanimously agreed, that the high-density commuter line exception
should be removed. All railroad operations, whether commuter or
freight, or both, should be subject to the same inspection method
requirements in Sec.  213.233(b)(3). No track owners or railroads
currently utilize this exception.
C. Incorporation of Flange-Bearing Frog and Heavy-Point Frog Waivers
    As explained in more detail above, under 49 CFR 213.17 and FRA's
Rules of Practice found at 49 CFR part 211, any person subject to FRA's
safety regulations can submit a petition for a waiver from those
requirements. FRA is proposing to revise two sections of part 213
(Sec. Sec.  213.137 and 213.143) to incorporate longstanding waivers
that, with certain limiting conditions, permit the use of flange-
bearing frogs and heavy-point frogs that do not comply with current FRA
standards. FRA believes that under certain conditions, use of these
types of frogs provide safety benefits by more evenly distributing
loads across the frogs with minimal impact to rail surfaces, as
compared to other types of rail frogs. Incorporating these waivers into
FRA's regulations would result in industry cost-savings larger than
from the waivers alone.
i. Heavy-Point Frogs
    A heavy-point frog (HPF) is a unique design that has a thicker frog
point than a traditional frog. This unique design offers safety
benefits over a traditional frog because of more inert mass to reduce
metal fatigue from impact loading, greater durability, reduced
susceptibility to deformation of the frog point, and better ability to
guide the wheel flange toward the proper flangeway. In an HPF, the gage
line is \11/32\ (0.3438) of an inch thicker than a traditional, rail-
bound manganese frog point. This reduces the standard guard check
distance from 4 feet, 6\5/8\ (54.6250) inches to 4 feet, 6\29/64\
(54.4531) inches, which does not comply with minimum guard check
distance for Class 5 track.
    As defined in 49 CFR 213.143, footnote 1, and as shown in Figure 1
below, guard check gage is the distance between the gage line of a frog
to the guard line (a line along the side of the flangeway nearest to
the center of the track and at the same elevation as the gage line) of
its guard rail or guarding face, measured across the track at right
angles to the gage line (a line \5/8\'' below the top of the center
line of the head of the running rail, or corresponding location of the
tread portion of the track structure).
    The purpose of the minimum guard check gage is to ensure a
vehicle's wheels are able to pass through the frog without one of the
wheels (the right wheel in Figure 1) striking the frog point. In Figure
1, there are two key dimensions: ``wheel check,'' which is the distance
between the two wheels plus the wheel flange thickness at the gage line
(\5/8\'' below the running surface); and ``guard check gage,'' which is
defined above. As illustrated in Figure 1, guard check gage must be
greater than or equal to the wheel check so there will be a ``flange-
frog point gap'' between the right wheel and frog point interface, when
the left wheel flange passes against the guard rail. As stated above
and further illustrated in Figure 1, this ensures the right wheel does
not strike the frog point.
    Figure 1 depicts a standard frog, which has a standard guard check
gage of 54.625'', meeting the requirement for Class 5 track (greater
than or equal to 54\1/2\'' or 54.5''). A heavy-point frog has a
standard guard check gage of 54.4531'',
[[Page 72531]]
which does not meet current FRA standards for Class 5 track but does
meet the current standards for Class 4 track (greater than or equal to
54.375'').
[GRAPHIC] [TIFF OMITTED] TP31DE19.000
    In 2003, FRA approved a waiver permitting operation of trains at
Class 5 track speeds over certain HPFs at which the guard check gage,
under existing 49 CFR 213.143, conforms to the standards applicable to
Class 4 track. See docket number FRA-2001-10654 (available online at
www.regulations.gov). Among other conditions to ensure safety, the
waiver requires that the frog, and the guard rails on both tracks
through the turnout containing the frog, be equipped with at least
three through-gage plates (metal plates underneath the frog that expand
across the entire frog to provide both vertical support and lateral
restraint for the frog components) with elastic rail fasteners and
guard rail braces that permit adjustment of the guard check gage
without removing spikes or other fasteners from the crossties. The
waiver also requires that track owners retain records of the location
and description of each turnout containing an HPF, notify FRA prior to
operating trains over a new HPF, and provide proper information and
training to any employees designated to inspect or supervise
restoration or renewal of areas containing an HPF. Each HPF must also
bear an identifying mark. Since FRA initially granted the waiver in
2003, FRA has renewed the waiver three times, most recently on February
15, 2018. The waiver is currently set to expire on February 15, 2023.
    To date, no accidents have been reported to FRA as having occurred
at or near locations where HPFs are installed. Accordingly, FRA
believes that the safety benefits of HPFs have been proven. As
discussed in more detail below in the section-by-section analysis for
Sec.  213.143, FRA proposes to incorporate the waiver provisions into
the regulation.
ii. Flange-Bearing Frog Crossing Diamonds
    Flange-bearing frogs (FBF) are different from the traditional
tread-bearing frogs used by freight railroads in most crossing diamonds
and turnouts in the United States. In traditional tread-bearing
crossing diamonds, a vehicle's wheels must run over the gaps in the
running rails. This creates significant dynamic loading that can damage
both the diamond and components of the vehicle (e.g., the vehicle's
wheels and axles). For FBFs, the flangeway is designed to support the
wheels running on their flanges. There are ramps to provide a smooth
transition from tread-bearing to flange-bearing and significantly
reduce the dynamic wheel forces. This can greatly reduce noise and
vibration, increase the service life of crossing diamonds and vehicle
components, reduce the need for maintenance, and possibly decrease the
need for speed restrictions in certain circumstances due to worn,
damaged, or defective crossing diamonds.
    In 2000, FRA approved a waiver granting relief from the flangeway
depth requirements in 49 CFR 213.137(a) as well as the limitation in 49
CFR 213.137(d) restricting FBFs to Class 1 track. See docket number
FRA-1999-5104 (available online at www.regulations.gov). Among other
conditions, this initial waiver allowed track owners to install up to
five FBF crossing diamonds in Class 2 or 3 track. FRA limited its
initial approval to five FBF crossings under specific operational
conditions and conditions requiring vehicle and track inspections
designed to closely monitor the performance of the FBFs. In 2010, based
on the successful implementation of the initial waiver and data
gathered as a result, at industry's request, FRA granted a revised
waiver allowing installation of FBF crossing diamonds on Classes 2
through 5 track with crossing angles above 20 degrees unless movable
guard rails are used. Among other conditions, the waiver required that
newly installed FBF crossing diamonds be inspected daily during the
first week of operation, weekly for the month after, and monthly
thereafter. The waiver also required the track owner to prepare
maintenance manuals and properly train its personnel. The waiver was
renewed in September 2015, and is set to expire in September 2020.
[[Page 72532]]
    To date, no accidents have been reported to FRA as having occurred
at or near FBFs. Accordingly, FRA believes that the safety benefits of
FBFs have been proven and proposes to incorporate the waiver provisions
into the regulation. Because the performance of the FBF crossing
diamonds installed under the waiver is the primary basis for FRA's
conclusion that these frogs are safe, FRA believes that it is in the
best interests of public safety to retain, as much as reasonably
possible, similar limitations imposed under the waiver.
V. Section-by-Section Analysis
    FRA seeks comments on all proposals made in this NPRM.
Section 213.1 Scope of Part
    Section 213.1 sets forth the scope of part 213. Paragraph (b)
specifies that subparts A through F of part 213 apply to track Classes
1 through 5 and that subpart G and certain individual sections of
subpart A apply to track Classes 6 through 9. FRA proposes to amend
paragraph (b) of this section to reference proposed Sec.  213.240
(continuous rail testing). Together with proposed Sec.  213.240, this
change would allow track owners to elect to use continuous rail testing
conducted under Sec.  213.240 on Class 6 through Class 9 track to
satisfy the requirement for internal rail testing under Sec.  213.339.
Section 213.5 Responsibility for Compliance
    Section 213.5 specifies the parties responsible for compliance with
part 213. Paragraph (a)(3) of this section addresses persons
responsible for overseeing operations over track that is known to be
not in compliance with part 213. That paragraph requires operations
over such track to be overseen by a person designated under Sec.
213.7(a) who has ``at least one year of supervisory experience in
railroad track maintenance.'' FRA is proposing to remove the
requirement for the person overseeing operations on non-compliant track
to have ``one year of supervisory experience in railroad track
maintenance.'' This proposed change would conform to the proposed
changes to Sec.  213.7, which are discussed below.
    Additionally, FRA proposes to add the following sentence to the end
of paragraph (a)(3): ``If the operation is on Continuous Welded Rail
(CWR) track, the person under whose authority operations are conducted
must also be designated under Sec.  213.7(c).'' This change is meant to
clarify that in order for a person to authorize operations over CWR
track that does not meet all the requirements of part 213, the person
must be designated and qualified by the track owner under Sec.
213.7(c) to inspect CWR track or supervise the installation,
adjustment, and maintenance of CWR track.
    Following issuance of a final rule, FRA will issue a schedule of
civil penalties to provide guidance on penalties for violations of new
and amended section of part 213. This guidance will be available on
FRA's website at www.fra.dot.gov. Because such penalty schedules are
statements of agency policy, notice and comment are not required prior
to their issuance. See 5 U.S.C. 553(b)(3)(A). Nevertheless, commenters
are invited to submit suggestions to FRA describing the types of
actions or omissions for each proposed or amended regulatory section
that would subject a person to the assessment of a civil penalty.
Commenters are also invited to recommend what penalties may be
appropriate, based upon the relative seriousness of each type of
violation.
Section 213.7 Designation of Qualified Persons To Supervise Certain
Renewals and Inspect Track
    Section 213.7 requires track owners to designate qualified persons
to inspect track and supervise certain track restorations and renewals,
and specifies the records related to these designations a track owner
must maintain. The section also requires these qualified persons to
have ``written authorization'' from the track owner to prescribe
remedial actions to address identified nonconformities in the track.
Paragraph (a)(1) of this section specifically requires that a person
designated to supervise the restoration and renewal of track under
traffic conditions have, among other things, either one year of
supervisory experience in railroad maintenance or a combination of
supervisory experience in track maintenance and training. During the
TSS Working Group meetings, some members expressed the view that the
requirement for supervisory experience in paragraph (a)(1) was
unreasonable. Those members asserted that as written, an employee
cannot be qualified to supervise restoration and renewal of track under
paragraph (a)(1) unless he or she has supervisory experience in track
maintenance, yet the employee may only be able to gain supervisory
experience if he or she is first considered qualified under paragraph
(a)(1). FRA agrees that requiring supervisory experience to qualify
under paragraph (a)(1) creates a possible conflict in the regulatory
language and proposes to remove the supervisory requirement in the
paragraph.
    Paragraphs (a)(3), (b)(3), and (c)(4) each require that a qualified
person possess ``[w]ritten authorization from the track owner to
prescribe remedial actions.'' Although FRA believes that the term
``written'' can be interpreted to encompass both physical hardcopies of
an authorization as well as electronic authorizations, to avoid any
possible confusion, consistent with the TSS Working Group's
recommendation, FRA proposes to remove the term ``written'' from each
of these paragraphs. The change would make clear that the required
authorizations may be recorded and conveyed either in hardcopy or
electronic form.
    Existing paragraph (e) of this section requires track owners to
maintain ``written records'' of each designation in effect and the
basis for that designation. Consistent with the proposed revisions to
paragraphs (a)(3), (b)(3) and (c)(4), FRA proposes to revise this
paragraph to remove the requirement to maintain ``written'' records.
Records of designations made under Sec.  213.7 can be either in
hardcopy or electronic form. FRA proposes to add new paragraph (e)(2)
to require records of designations under Sec.  213.7 to include the
date each designation is made. TSS Working Group members expressed the
view that the date of an individual's designation is relevant and
important information both to the track owner and to FRA, and FRA
believes most, if not all, track owners already include this in their
designation records. To incorporate this proposed revision, existing
paragraph (e)(2) would be redesignated as paragraph (e)(3) and revised
to require records to contain not only the basis for each designation
as existing paragraph (e)(2) currently requires, but also to require
track owners to include the method used to determine that the
designated person is qualified. This change is intended to better
conform with the requirements of existing Sec.  213.305(e) for high-
speed operations, and better describe what FRA means by the ``basis for
each designation.'' To meet this requirement, a track owner could
include information about the nature of any training courses the
designated person participated in and how the track owner determined
that the designated person successfully completed the course (e.g.,
test scores, demonstrated proficiency, etc.).
    Existing paragraph (e)(3) also requires designation records under
Sec.  213.7 to include records of track inspections ``made by each
designated qualified person.'' FRA proposes to remove the requirement
as FRA finds it to be redundant when considering the current
requirements of Sec.  213.241, Inspection
[[Page 72533]]
records. Under existing Sec.  213.241, track owners are required to
maintain records of track inspections made by qualified inspectors and
make those records available to FRA. Accordingly, existing paragraph
(e)(3) would be redesignated as new paragraph (f) and revised. As under
the existing regulation, a track owner would be required to make the
records kept under paragraph (e) available for inspection and copying
by FRA. FRA proposes rephrasing the paragraph to require that FRA make
its request for records during normal business hours and provide the
track owner ``reasonable notice'' before requiring production. The
meaning of the term ``reasonable notice'' depends on the specific facts
of each situation (e.g., time of day, day of the week, number of
records requested, etc.). FRA does not intend these revisions to
substantively change recordkeeping requirements or FRA's existing
inspection practices. These revisions are primarily intended to clarify
how FRA currently enforces the regulation.
Section 213.9 Classes of Track: Operating Speed Limits
    Section 213.9 sets forth the maximum allowable operating speeds for
both passenger and freight trains for excepted track, and track Classes
1 through 5 (track speeds up to 90 miles per hour for passenger trains
and up to 80 mph for freight trains). Paragraph (b) of this section
addresses situations in which a track segment does not meet the
requirements for its intended class and specifies that if a segment of
track does not at least meet the requirements for Class 1 track,
operations may continue under the authority of a person designed under
Sec.  213.7(a) ``who has at least one year of supervisory experience in
railroad track maintenance'' for up to 30 days. Consistent with the
revisions proposed to Sec.  213.7(a), FRA proposes to revise this
paragraph to remove the requirement that a person designated under
Sec.  213.7(a) have a least one year of ``supervisory'' experience in
railroad track maintenance. Please see the above discussion of Sec.
213.7(a).
Section 213.11 Restoration or Renewal of Track Under Traffic Conditions
    Existing Sec.  213.11 requires operations over track undergoing
restoration or renewal under traffic conditions and not meeting all the
requirements of part 213 to be conducted under the continuous
supervision of a person designated under Sec.  213.7(a) with ``at least
one year of supervisory experience in railroad track maintenance.''
Consistent with the proposed changes to Sec.  213.7(a), FRA proposes to
remove the requirement that the person supervising restoration or
renewal of track under traffic conditions have a minimum of one year of
``supervisory'' experience in track maintenance. Additionally, FRA
proposes to add the requirement that if the restoration or renewal is
on continuous welded rail (CWR) track, the person must also be
qualified under Sec.  213.7(c). Because Sec.  213.7 already requires
that anyone designated under Sec.  213.7(a) or (b) who inspects or
supervises maintenance of CWR track must also be designated under Sec.
213.7(c), this change to Sec.  213.11 is simply a clarifying revision
that restates the existing regulatory requirement.
    Additionally, FRA proposes adding a sentence stating the
``operating speed cannot be more than the maximum allowable speed under
Sec.  213.9 for the class of track concerned.'' This is meant to
clarify that the person designated under Sec.  213.7(a), and (c) if
applicable, may not authorize movement over the track the person is
supervising at speeds greater than the maximum allowable operating
speed for the class of track concerned.
Section 213.113 Defective Rails
    Section 213.113 prescribes the required actions that must be taken
when a track owner learns that a rail contains an indication of a
defect and after the track owner verifies the existence of the defect.
FRA proposes to modify the second sentence in paragraph (b) so that it
begins with ``except as provided in Sec.  213.240, . . . .'' This
change is simply meant to clarify that the requirement that an
indication of a defect be verified within four hours would not apply if
a track owner elects to conduct continuous testing under proposed Sec.
213.240.
Section 213.137 Frogs
    Section 213.137 contains the standards for use of frogs. Existing
paragraph (a) prescribes limits on the flangeway depth of a frog. On
June 27, 2000, FRA granted a waiver (docket number FRA-1999-5104) to
members of the railroad industry allowing the installation of flange-
bearing frogs (FBFs) used in crossing diamonds in track Classes 2
through 5, and exempting those diamonds from the flangeway depth
requirements of paragraph (a), subject to certain conditions. As
discussed in more detail in section II.C of this NPRM, the waiver was
renewed multiple times, most recently on September 17, 2015, and will
expire on September 17, 2020. After careful review of safety
performance under the waiver and analysis of track-caused derailments,
FRA has not identified any negative safety implications for use of
FBFs.
    Based on the above, as well as the discussion in section II.C of
this NPRM, FRA proposes to modify Sec.  213.137 by adding paragraph (e)
and allowing the use of FBFs in crossing diamonds in Classes 2 through
5 track consistent with the conditions of the existing waiver.\2\
Because the performance of the FBFs installed under the waiver is the
primary basis for FRA's conclusion that these crossing diamonds are
safe, FRA believes that it is in the best interests of public safety to
retain, as much as reasonably possible, the same limitations imposed
under the waiver.
---------------------------------------------------------------------------
    \2\ As noted above, Sec.  213.137(d) already allows the use of
FBFs in Class 1 track.
---------------------------------------------------------------------------
    The limitation in proposed paragraph (e)(1) would require the
crossing angle to be greater than 20 degrees unless movable guard rails
are used. When a crossing diamond has a smaller crossing angle, there
is a heightened risk of damage to the rail head when the wheel flange
crosses over it. Proposed paragraph (e)(2) would require that the track
owner document the location, crossing angle, tonnage, speed, direction,
and type of traffic for each FBF utilized under paragraph (e). Type of
rail traffic means passenger, freight, and hazardous material. This
information would be required to be made available to FRA upon request
following reasonable notice during normal business hours.
    Proposed paragraph (e)(3) would require the track owner to prepare
a maintenance manual for FBFs in crossing diamonds and make copies of
that manual available to all personnel responsible for inspecting or
repairing any such FBFs. Proposed paragraph (e)(3) would also require
that all personnel responsible for inspecting or repairing any FBF in a
crossing diamond be properly trained. FRA does not specify what must be
included in the maintenance manuals or covered in the training.
Instead, FRA expects that a manual would include all necessary
information relevant to the successful inspection and maintenance of an
FBF and organized in a manner that allows the person performing the
inspection or maintenance, or both, to find the information in a timely
fashion. Maintenance manuals can be prepared by entities other than the
track owner (e.g., the manufacturer of the FBF or the railroad).
Training must be of a sufficient duration and quality to ensure the
trainee has a sufficient understanding to properly inspect and maintain
FBFs. Additionally, the railroad or track owner must ensure that
[[Page 72534]]
the trainee is actually ``trained.'' This could be accomplished, for
example, through testing, on-the-job mentoring, or any other means
sufficient to demonstrate that the trainee fully understands and
retains the information necessary to properly inspect and maintain
FBFs. FRA invites comment on whether FRA's intent to implement the rule
in this manner and the proposed meaning of the terms used in paragraph
(e)(3) should be defined in the rule text.
    FRA has not proposed to adopt the condition, included in the
waiver, mandating an increased inspection frequency for FBFs. Under the
waiver, track owners are required to inspect a newly-installed FBF
daily during the first week of operation, and weekly for the month
thereafter. Since FBFs have been proven safe under the long-standing
waiver and the waiver has produced no data that FRA is aware of
indicating a higher likelihood for defects in newly-installed FBFs when
compared to traditional frogs, FRA does not believe these increased
inspections are warranted and has not proposed to include that
condition. FRA invites comment on whether this condition should be
included in the final rule and, if so, any data that would justify such
inclusion.
Section 213.143 Frog Guard Rails and Guard Faces; Gage
    This section prescribes a minimum and maximum value for guard check
and guard face gages, respectively. Guard check gage is the distance
between the gage line of a frog and the guard line of its guardrail or
guarding face. Allowable minimum dimensions vary with track
classification, i.e., train speed.
    As discussed in more detail in section IV.C of this NPRM, in 2003,
FRA granted a waiver (docket number FRA-2001-10654) to members of the
railroad industry allowing operation of trains at Class 5 speeds over a
heavy-point frog (HPF) with guard check gages conforming to the
standards for Class 4 track frogs. FRA granted three extensions of this
waiver, most recently on February 15, 2018, and it will expire on
February 15, 2023. After careful review of safety performance under the
waiver and analysis of track-caused derailment data, FRA believes that
the safety case has been proven and proposes to incorporate the waiver
provision into the regulation. Because the performance of the HPFs
installed under the waiver is the primary basis for FRA's conclusion
that these frogs are safe, FRA believes that it is in the best
interests of safety to retain, as much as reasonably possible, the same
limitations imposed under the waiver.
    Consistent with the conditions of the existing waiver, FRA proposes
the addition of footnote 3 to the table in Sec.  213.143, which would
allow the guard check gage for HPFs on Class 5 track to be less than
the current 4 feet, 6\1\/2-inch minimum, but not less than 4
feet, 6\3\/8 inches (the current minimum for frogs in Class
4 track). Proposed paragraph (a) of footnote 3 would require that each
track owner maintain records of the location and description of each
HPF and make that information available to FRA upon request during
normal business hours following reasonable notice. Proposed paragraph
(b) of footnote 3 would require that each HPF and guard rails on both
rails through the turnout be equipped with at least three serviceable
through-gage plates with elastic rail fasteners and guard rail braces
that permit adjustment of the guard check gage without removing spikes
or other fasteners from the crossties.
    Proposed paragraph (c) of footnote 3 would require that each track
owner provide proper maintenance manuals, instructions, and training to
any Sec.  213.7 designated employees who inspect track or supervise
restoration and renewal of track, or both, in areas that include
turnouts with HPFs. As with the proposed revisions to Sec.  213.137,
FRA does not specify what must be included in the maintenance manuals
or covered in the training. Instead, FRA expects that a manual will
include all necessary information relevant to the successful inspection
and maintenance of an HPF and organized in a manner that would allow
the person performing the inspection or maintenance, or both, to find
the information in a timely fashion. Maintenance manuals can be
prepared by entities other than the track owner (e.g., the manufacturer
of the HPF or the railroad). Training likewise must be of a sufficient
duration and quality to ensure the trainee has a sufficient
understanding to properly inspect and maintain HPFs. Additionally, the
track owner must ensure that the trainee is trained. This can be
accomplished, for example, through testing, on-the-job mentoring, or
any other means sufficient to demonstrate that the trainee fully
understands and retains the information necessary to properly inspect
and maintain HPFs. FRA invites comment on whether FRA's intent to
implement the rule in this manner and the proposed meaning of the terms
used in paragraph (c) should be defined in the rule text.
    Finally, proposed paragraph (d) of footnote 3 would require that
each HPF bear an identifying mark that identifies the frog as an HPF.
This mark can be applied by the track owner, railroad, or the HPF
manufacturer. The mark used must be described in the instructions given
to the employees discussed in proposed paragraph (c). The identifying
mark must be of a type and size, and in a location, that will allow the
employees to quickly and effectively determine that it is an HPF.
Section 213.233 Visual Track Inspections
    Section 213.233, currently titled ``Track inspections,'' sets forth
general requirements for the frequency and method of performing
required visual track inspections on excepted track and track Classes 1
through 5. To better reflect the scope of this section, FRA proposes to
add the word ``visual'' to the section heading so that it would read
``Visual track inspections.'' No substantive change is intended.
Because other sections in part 213 for these track speeds cover
different types of inspections and inspection methods (e.g., automated
inspections, inspections of rail, etc.), this proposed change would
clarify that this section deals specifically with visual track
inspections. This proposal is also consistent with the current heading
for the corresponding high-speed track section, Sec.  213.365, ``Visual
inspections.'' As discussed below, FRA proposes to revise the heading
for Sec.  213.365 so that the headings are the same for both Sec. Sec.
213.233 and 213.365.
    Paragraph (b) of this section requires visual track inspections to
be made on foot or by ``riding over'' the track at a speed allowing the
inspector to visually inspect the track structure for compliance; and,
when inspecting from a vehicle, this section sets the vehicle's maximum
speed at 5 m.p.h. when ``passing over'' track crossings and turnouts.
Paragraph (b) also specifies that one inspector in a vehicle may
inspect up to two tracks at one time under certain conditions,
including that the second track is not centered more than 30 feet from
the track upon which the inspector ``is riding.'' Similarly, two
inspectors may inspect up to four tracks from one vehicle under certain
conditions, including that the second track center is within 39 feet
from the track on which the inspectors ``are riding.'' For grammatical
consistency throughout this section, FRA proposes revising the terms
``riding over'' and ``passing over'' to ``traversing'' in this
paragraph and, for the same reason, FRA is also proposing to revise the
terms ``is riding'' and ``are riding'' to ``traverses'' and
``traverse.''
[[Page 72535]]
    Additionally, FRA proposes removing the terms ``upon which'' from
paragraphs (b)(1) and (2), and changing ``is actually'' to ``must be''
in paragraph (b)(3). These changes are not meant to affect the meaning
of Sec.  213.233, but are instead made for grammatical consistency.
    As discussed in more detail above in section IV.B of this NPRM, FRA
proposes to remove the last sentence of paragraph (b)(3), also known as
the high-density commuter line exception. Paragraph (b)(3) requires,
among other things, that each main track be traversed by a vehicle or
inspector on foot at least once every two weeks, and every siding at
least every month. The high-density commuter line exception currently
applies where track time does not permit on-track vehicle inspection
and where track centers are 15 feet or less apart and exempts those
operations from the inspection method requirements of paragraph (b)(3).
FRA's proposal to remove this exception is directly responsive to
Congress's direction in sec. 11409 of the FAST Act and NTSB's Safety
Recommendation R-14-11. In addition, FRA understands that no track
owner currently utilizes this exception, so its removal will have
little to no impact on the regulated industry.
    FRA proposes three revisions to paragraph (c). First, FRA proposes
to add the word ``visual'' before ``track inspection'' in the
introductory text. This is simply to make paragraph (c) consistent with
the new heading for Sec.  213.233 and has no effect on the meaning of
paragraph (c). Second, FRA proposes adding footnote 1 after the word
``weekly'' in the table in paragraph (c). The proposed footnote defines
the term ``weekly'' to be a seven-day period beginning on Sunday and
ending on Saturday. This definition is consistent with FRA's past
interpretation and enforcement practice, as well as FRA's public
guidance included in Volume II, Chapter 1, of the Track and Rail and
Infrastructure Integrity Compliance Manual, March 1, 2018, available on
FRA's public eLibrary website (https://www.fra.dot.gov/eLib/Find).
    Third, FRA proposes to add footnote 2 after the term ``passenger
trains'' in the table in paragraph (c). The proposed language was
suggested to the TSS Working Group by the Rail Heritage Association and
FRA agrees that it would reduce unnecessary burden on certain regulated
entities while not negatively impacting safety. This proposed footnote
would exempt, in two situations, entities from the required twice-
weekly inspection requirement for track carrying passenger trains if
the passenger train service consists solely of tourist, scenic,
historic, or excursion operations as defined in 49 CFR 238.5. In the
first situation, this exemption would apply where no passenger service
is operated over the track during the inspection week. In the second
situation, this exemption would apply where passenger service is
operated during the inspection week but only on a weekend (Saturday and
Sunday) or a 3-day extended weekend (Saturday and Sunday plus either a
contiguous Monday or Friday) and an inspection is conducted before, but
not more than one day before, the start of the weekend or 3-day
extended weekend.
    FRA also proposes to revise paragraph (d). Specifically, FRA
proposes the addition of the phrase ``the Sec.  213.7 qualified'' at
the beginning of the paragraph to clarify that ``the person'' making
the inspection that the existing rule text refers to is the qualified
track inspector designated under Sec.  213.7. Additionally, FRA
proposes adding a sentence at the end of paragraph (d) stating that any
subsequent movements to facilitate repairs on track that is out of
service must be authorized by a Sec.  213.7 qualified person. This
section is silent as to whether or when movement over track that is out
of service is permissible. FRA recognizes that certain movements are
necessary to facilitate repairs and therefore does not interpret or
enforce the current regulatory language to bar such movements of
equipment and materials on track that is out of service. The proposed
revision is meant to embody that practice and interpretation and
prevent possible confusion.
Section 213.240 Continuous Rail Testing
    FRA proposes to add this new section to allow track owners to
satisfy the requirements for internal rail inspections under Sec.
213.237, or Sec.  213.339 (for Class 6 track and higher), using
continuous rail testing. This proposed section would allow for greater
flexibility in the rail flaw detection process and additional time to
analyze the data collected during continuous rail testing and field-
verify indications of potential rail flaws. This additional time
allotment would allow for improvements in planning and execution of
rail inspections and rail defect remediation, thereby lessening the
impact on rail operations. As a result, more track time should become
available to conduct maintenance and increase inspections. However, as
continuous testing is a more complex process compared to the
traditional stop-and-verify rail inspection, certain conditions must be
met to ensure that this elective process is conducted properly and
provides sufficient recordkeeping and transparency to allow for
adequate oversight by FRA.
    The continuous rail test method consists of a vehicle using
ultrasonic testing, in some cases augmented by other flaw detection
systems, to detect defects in the rail. The raw test data is
transmitted from the vehicle to a centralized location to be analyzed
by a team of experts, using multiple advanced techniques, including
comparison to past data from the same location (sometimes referred to
as ``change detection''). Once analyzed, suspect locations (locations
where the data indicates the possible presence of a rail defect) are
then transmitted back to the field for on-site verification to
determine if an actual rail flaw exists.
    Under existing Sec.  213.113(b), when a track owner learns that a
rail contains an indication of one of the defects listed in the table
in Sec.  213.113(c), the track owner must field-verify the indication
within four hours. Proposed Sec.  213.240 would exempt track owners who
elect to utilize continuous rail testing from the requirement to field-
verify the indication within four hours. This increased verification
period is justified by the logistical and safety benefits of continuous
rail testing. Because the test vehicle does not have to stop and verify
each suspected defect, more track can be inspected at greater speeds
with significantly less interruption to revenue service. The more time-
consuming analysis of the test data can be conducted at an off-site
location and reviewed at an optimal speed not related to the speed of
the test vehicle. Additionally, the test data can be more thoroughly
compared to past test runs over the same section of track to better
identify possible defect propagation and growth. The decreased
interruption to revenue service would also allow track owners to test
track more frequently. FRA believes that continuous rail testing would
substantially decrease the overall cost to the railroad industry while
not negatively affecting safety.
    As noted in section IV.A above, since 2009, a number of railroads
have implemented continuous rail testing programs through limited,
conditional waivers of 49 CFR 213.113(b). That section requires track
owners, who learn that a rail in their track contains an indication of
a defect listed in the table in Sec.  213.113(c), verify the indication
within four hours and take remedial action in accordance with the
table. The remedial action table in Sec.  213.113(c) prescribes the
required remedial actions
[[Page 72536]]
(and timelines for taking those actions) based on the severity of the
defects identified. In other words, based on the size and severity of
specific types of defects, there is a built-in safety threshold in the
remedial action table for each known defect depending on the defect
type and size. Generally, the waivers FRA has granted to date allowing
railroads to conduct continuous rail testing programs provide railroads
with a longer period of time to verify indications of defects than
permitted by Sec.  213.113(b), and allow railroads to prioritize the
verification and remediation of those defects based on the severity of
the indications and defects identified. Suspect indications of defects
are not prioritized arbitrarily, but are put into categories based on
ultrasonic reflective responses as viewed by the analyst.
    Under the continuous rail test process, analysts interpret the
collected ultrasonic reflective responses, which allows them to
estimate the defect type and size. As explained in more detail below,
when these responses indicate a suspected defect above the threshold
that, if verified, would require remedial action note ``A,'' ``A2,'' or
``B'' under the table contained in Sec.  213.113(c), that suspect
location must be field-verified within the timeframe listed in proposed
Sec.  213.240(e)(2), and is commonly referred to in the industry as a
``priority one.'' The ``A,'' ``A2,'' and ``B'' remedial actions are
required when a defect is at or above a specific size as outlined in
the table in Sec.  213.113(c).
    Those suspected defects that, if verified, would not require
remedial actions ``A,'' ``A2,'' or ``B,'' must be field-verified within
the timeframe listed in proposed Sec.  213.240(e)(1), and are commonly
referred to in the industry as either a priority two or a priority
three, depending on the clarity of the indication. Often, when the
ultrasonic test data produces a response where the analyst believes a
defect is present because of the strength of the ultrasonic reflective
signal, but that signal does not indicate a suspect defect of the type
and/or size requiring remedial action ``A,'' ``A2,'' or ``B,'' the
track owner lists the indication as a priority two. All other suspect
locations identified by the analyst as potential defects or
questionable ultrasonic responses are often marked as priority three
suspect locations by the track owner. These so-called priority threes
are indications where the ultrasonic reflective data does not produce a
clear indication of defect type or size, but produces an unfamiliar or
questionable response. Since many variables affect ultrasonic
responses, the priority three suspect type is the most commonly used
since it requires the hand verifier to check that location to ensure
nothing is being missed or misinterpreted that might result in a rail
failure and subsequent derailment.
    The Sec.  213.113(c) remedial action table reflects the fact that
all verified defects pose a potential risk of sudden failure, depending
on conditions, even with defects deemed to be less severe than others.
Regardless of the defect size and type, once a rail failure occurs,
there is a potential for a catastrophic accident. Data from the
existing waivers demonstrates that, while less than 2% of the suspected
priority three defects are found to be actual rail defects, priority
three defects account for approximately 85% of the field-verified
defects marked and removed from the tracks as a result of continuous
testing. Thus, while priority three defects have a much higher
probability of a false positive, they are also by far the most common
indication of an actual defect. Accordingly, FRA believes that safety
necessitates continuing to require the field verification of all
defects identified by tests carried out under Sec.  213.237 or Sec.
213.239.
    FRA requests comment, however, on the feasibility and desirability
of establishing a generally applicable, performance-based requirement
differentiating different categories of defects and appropriate field
verification and remediation requirements, and whether there are any
types of defects that should be exempted from field verification and/or
remediation requirements.
    Proposed paragraph (a) would allow track owners to use continuous
rail testing instead of complying with Sec.  213.113(b), provided the
track owner complies with the minimum requirements of Sec.  213.240.
Proposed paragraph (a) also makes clear that the track owner must still
comply with all other requirements of Sec.  213.113, as well as all
requirements of proposed Sec.  213.240. Specifically, proposed Sec.
213.240 would not make any changes to the remedial action(s) a track
owner must take after field verification of a suspect location
determines a rail defect does exist. In other words, Sec.  213.240
provides additional time to field-verify a defect, but once verified,
the track owner must immediately take appropriate remedial action as
described in Sec.  213.113(c).
    Proposed paragraph (b) outlines the minimum procedures that a track
owner must adopt to conduct continuous rail testing under Sec.
213.240. Prior to starting a continuous testing program, a track owner
must adopt procedures that comply with this section. Rail testing is
vital to the prevention of track-caused accidents, and documented
procedures are necessary to ensure continuous rail testing works
consistently and effectively, and that those involved understand their
responsibilities and have a resource they can consult if they have any
questions. These minimum procedures are designed to allow each track
owner flexibility in determining the best approach to conduct
continuous testing.
    Proposed paragraph (b)(1) would require continuous rail testing
procedures address how test data will be transmitted and analyzed. This
would include how the test data is transmitted from the test vehicle to
the offsite facility for analysis and how the analyzed test data and
findings are to be transmitted to those responsible for field
verification and remediation. The procedures must also cover how the
data is to be analyzed, including comparing the test data to data from
prior test runs. The provision is intentionally general to allow track
owners to tailor their procedures to their own circumstances and gives
the necessary flexibility for those procedures to be revised as new
information and technology becomes available. The lines of
communication and means of analysis must be covered in the track
owner's procedures so that the parties involved understand the process.
This is vitally important because an error in how the data is
transmitted or analyzed can result in a rail defect going undetected or
unaddressed, potentially causing a derailment.
    Proposed paragraph (b)(2) would require continuous rail testing
procedures address how suspect locations are to be identified for field
verification. As discussed in greater detail below, proposed paragraphs
(e) and (f) would require the suspect location be identified and
recorded in a manner that allows the qualified person under Sec.
213.238 to accurately locate the suspect location with repeatable
accuracy during field verification. Proposed paragraph (b)(2) requires
the continuous rail testing procedures cover how that is to be done--
for example, what information will be provided to the personnel
responsible for field verification (e.g. GPS coordinates) and, if
necessary, what steps must those personnel take to ensure they
accurately use that information depending on the actual field
conditions. Additionally, FRA understands that some entities currently
performing continuous testing may require field-verifiers to coordinate
with the person who conducted the
[[Page 72537]]
analysis of the test data for certain categories of defects to ensure
they accurately locate the suspect location. Track owners that adopt
such a practice must include it in their procedures.
    Proposed paragraph (b)(3) would require the procedures discuss how
suspect locations will be categorized and prioritized according to
their potential severity. As noted below, proposed paragraph (e)
includes different time limits for field verification of suspected
defects depending on their type. Proposed paragraph (b)(3) requires the
track owner's procedures cover how those different categories of
suspected defects will be designated as well as any additional
categorization, or sub-categories, that the track owner decides to use.
This would include what terminology the track owner decides to use for
the different categories, and is necessary so that all parties involved
can understand the reports and documentation created by the continuous
testing process.
    Proposed paragraph (b)(4) would require the procedures address how
suspect locations will be field-verified, and is necessary so those
responsible for field verification understand what they must do.
Accurate field verification is a vitally important part of continuous
testing, and rail testing in general, because it is the process by
which the track owner determines whether a rail defect exists or not,
and if so, how serious. As with all the minimum procedures in proposed
paragraph (b), the provision is intentionally general and intended to
give flexibility to the track owner to determine how best to
effectively field-verify. New research and technology may change how
field verification is conducted, and this provision is intended to
allow the procedures to be revised accordingly.
    Proposed paragraph (b)(5) would require continuous testing
procedures cover how suspect locations will be designated following
field verification. The designation of suspect locations following
field verification should, at minimum, allow the reviewing individual
to determine the outcome of the field verification and, if a rail
defect was found, the type and size of the defect. In other words,
proposed paragraph (b)(5) would require the procedures explain the
process for how the results of field verification will be recorded and
the terminology used by the track owner to note the outcome and
findings. If field verification does not confirm a defect exists at a
suspect location, the designation may specify the reason(s) why the
continuous test data indicated a suspect location (e.g., the presence
of a surface condition).
    Proposed paragraph (c) would require the track owner to designate
and record the type of rail test to be conducted, whether continuous or
stop-and-verify, prior to commencing the testing. Track owners may
elect to conduct continuous testing in conjunction with stop-and-verify
rail testing. However, a determination must be made prior to
commencement of the test as to which type of test will be conducted on
a given section of track, and that decision must be properly documented
to ensure that the effectiveness of the inspection can be adequately
evaluated for efficacy and reporting requirements. If the type of rail
testing changes after the test has been commenced, the track owner must
document that change, including the time the test was initially
started, the time it was changed, the milepost where the test started,
the milepost where the test changed, and the reason for the change.
These records must be made available to FRA upon request during regular
business hours following reasonable notice. To conduct oversight and
ensure safety, FRA must know the type of test utilized on a section of
track, because the type of test will dictate both the necessary
procedures and, more importantly, the required time period for field
verification of a suspected defect.
    Additionally, proposed paragraph (b)(1) would require that at least
10 days prior to commencement of a continuous rail test, the track
owner must designate and record whether the test is being conducted to
satisfy the requirement for an internal rail inspection under Sec.
213.237, or Sec.  213.339 where applicable. As discussed in greater
detail above, track owners are required to conduct a sufficient number
of internal rail inspections to satisfy the requirements of Sec.
213.237, or Sec.  213.339 where applicable. A continuous rail test
conducted to meet the minimum number of required internal rail
inspections must comply with proposed Sec.  213.240, including the
field verification requirements under proposed paragraph (e). Track
owners are of course permitted to conduct continuous rail tests above
and beyond the minimum requirements of Sec.  213.237, or Sec.  213.339
where applicable. Those additional rail tests (that are not intended to
meet the minimum number required by Sec.  213.237, or Sec.  213.339
where applicable), are not required to meet the requirements of
proposed Sec.  213.240, and the track owner therefore cannot rely on
such tests to demonstrate compliance with either Sec.  213.237 or Sec.
213.339. As such, the track owner must designate and record whether the
test is being conducted to satisfy the minimum frequency requirements
of Sec.  213.237, or Sec.  213.339 where applicable, at least 10 days
in advance of the test so that FRA can conduct oversight and ensure the
proper procedures are being followed.
    Proposed paragraph (d) lists required qualifications for certain
persons involved in key aspects of the continuous testing program.
Proposed paragraph (d)(1) would require that an operator of a
continuous rail test vehicle be qualified under Sec.  213.238. Section
213.238 lists the qualification requirements for operators of rail test
vehicles conducting stop-and-verify rail testing. FRA believes that the
same qualification requirements should apply to operators of continuous
test vehicles because, like operators of stop-and-verify test vehicles,
they must ensure that the vehicles conduct a valid search and function
as intended, be able to interpret relevant equipment responses, and
determine that a continuous valid search has been conducted.
    Proposed paragraph (d)(2) would require that the internal rail
inspection data be reviewed and interpreted by a person qualified to
interpret the equipment responses. FRA is intentionally not proposing
specific qualification requirements but instead proposes to leave it up
to the track owner to ensure the necessary procedures are in place for
its specific system so that the persons reviewing and interpreting the
data have been properly trained and tested. An analyst may not
necessarily need to have intimate knowledge of the inner workings of
the test equipment, but must be trained on how to properly assess the
equipment responses to determine when a possible rail defect exists and
field verification is necessary. The track owner or a designee shall
have a process in place to ensure all persons responsible for the
interpretation of the data are competent and capable of that task. By
using the word ``qualified,'' FRA does not simply mean that the track
owner has designated an individual as qualified. To be ``qualified,''
the persons must be properly trained and tested, and thus possess the
necessary knowledge and ability to accurately and competently review
and interpret the rail test data and properly identify suspected rail
defects.
    Proposed paragraph (d)(3) requires that all suspected locations be
field-verified by a person qualified under Sec.  213.238. FRA is aware
that this is the same qualification required for the continuous test
vehicle operators and
[[Page 72538]]
believes that an understanding of the vehicle systems is necessary to
accurately understanding the test data, find the suspected location,
and successfully field-verify the suspected defect.
    Proposed paragraph (e) would require that the continuous test
process, at a minimum, produce a report containing a systematic listing
of all suspected locations that may contain any defect listed in the
Remedial Action Table of Sec.  213.113(c). The suspect location must be
identified with sufficient information so that a qualified person under
Sec.  213.238 can accurately locate and field-verify each suspected
defect. FRA is intentionally not prescribing how a suspect location is
identified and proposes to leave it up to the track owner because it
may be affected by specific circumstances facing each track owner.
    FRA notes that when proposed paragraph (e) is read in conjunction
with proposed paragraph (f), the suspect location must be identified
and recorded in a manner that allows the qualified person under Sec.
213.238 to accurately locate the suspect location with repeatable
accuracy. This could include Global Positioning System (GPS)
coordinates, but for locations where GPS does not work, such as
tunnels, the track owner must have another procedure in place to
accurately identify the exact location of the suspected defects. FRA
also recognizes that the locations likely cannot be listed with perfect
accuracy and that there must be some acceptable margin of error.
Although FRA does not quantify the exact size of an allowable margin of
error, it cannot be of a size that would affect the ability of the
qualified person under Sec.  213.238 to accurately locate the suspected
defect noted on the report. For example, if the margin of error is too
large, there is the risk that the qualified person may confuse the
suspected defect noted on the report with another condition present in
or on the rail in the vicinity of the actual suspected defect.
    Proposed paragraphs (e)(1) and (2) contain specific timeframes in
which field verification of suspected locations must be conducted. For
purposes of verification timeframes, the indications are classified
into two categories: Those suspected defects that, if verified, would
require remedial action note ``A,'' ``A2,'' or ``B'' in the Remedial
Action Table; and all other defects. Additionally, indications of a
possible broken rail with rail separation must be protected
immediately. As discussed below, field verification would be required
within 24 hours of completion of the test run for suspected defects
falling into the first category and 72 hours for defects falling into
the second category. Further, FRA understands that new technologies or
processes may be developed that could allow for the collection of data
to occur around-the-clock or for extended periods of time. Thus, FRA
proposes adding an additional 12 hours to the verification time limits
as the absolute maximum period within which a suspected defect must be
field-verified.
    Proposed paragraph (e)(1) would require, subject to the
requirements of proposed paragraphs (e)(2) and (3), that the track
owner field-verify any suspect location within 72 hours after
completing the test run, or within 84 hours of the detection of the
suspect location, whichever is earlier. This, along with proposed
paragraphs (e)(2) and (3), would take the place of the current
requirement that suspect locations be field-verified within 4 hours.
Proposed paragraph (e)(1) would apply to any suspect location that does
not indicate a broken rail with rail separation or indicate a suspected
defect that, if verified, requires remedial action note ``A,'' ``A2,''
or ``B'' under the table contained in Sec.  213.113(c). In other words,
this proposed paragraph would apply to suspected defects that pose a
slightly lower immediate safety risk than the ones covered in proposed
paragraphs (e)(2) and (3). FRA believes allowing 72 hours from the
completion of the test run, or 84 hours from detection of the suspect
location, to field-verify the suspected defect would provide sufficient
flexibility to conduct continuous rail testing and have the test data
analyzed while also ensuring safe operations. FRA also recognizes that
a single test run may span a significant distance and time. Thus, FRA
proposes a maximum limit of 84 hours from detection of a suspect
location to when it must be field-verified, regardless of when the test
run has been officially completed.
    Proposed paragraph (e)(2) would require that any suspect location
containing a suspected defect that, if verified, would require remedial
action note ``A,'' ``A2,'' or ``B'' under the table contained in Sec.
213.113(c) must be field-verified no more than 24 hours after
completion of the test run, or 36 hours after detection of the suspect
location, whichever is earlier. The remedial action need not be the
only required remedial action, just one of the options. Thus, if
remedial action note ``A,'' ``A2,'' or ``B'' are listed in the remedial
action column (the last column) of the table in Sec.  213.113(c), the
defects associated with those remedial actions would be covered under
proposed paragraph (c)(3) and any suspect location possibly containing
one of those defects must be field-verified within the time required by
proposed paragraph (c)(3). Based on the table in Sec.  213.113(c), the
covered defects include:
     All compound fissures;
     Transverse fissures 60 percent or greater;
     Detail fractures 60 percent or greater;
     Engine burn fractures 60 percent or greater;
     Defective welds 60 percent or greater;
     Horizontal split head greater than 4 inches or where there
is a break out in the rail head;
     Vertical split head greater than 4 inches or where there
is a break out in the rail head;
     Split web greater than 4 inches or where there is a break
out in the rail head;
     Piped rail greater than 4 inches or where there is a break
out in the rail head;
     Head web separation greater than 4 inches or where there
is a break out in the rail head;
     Defective weld greater than 4 inches or where there is a
break out in the rail head;
     Bolt hole crack greater than 1.5 inches or where there is
a break out in the rail head;
     Broken base greater than 6 inches; and
     Ordinary breaks.
    Proposed paragraph (e)(3) would require that the track owner have
procedures in place to ensure adequate protection is immediately
implemented where the continuous rail test inspection vehicle indicates
a possible broken rail with rail separation. FRA intentionally does not
specify what needs to be included in the procedures but expects the
individual track owners to determine what is appropriate for their
specific operations. At a minimum, these procedures would need to
include specific communication channels, open at all times continuous
rail testing is conducted and data is being analyzed, among the
individuals who can take the necessary steps to immediately implement
adequate protection. A track owner may not wait until the suspected
broken rail with rail separation is field-verified. The visual
indication from the analyst alone is sufficient.
    Proposed paragraph (e)(4) states that a suspected location is not
considered an actual rail defect under Sec.  213.113(c) until it has
been field-verified by a person qualified under Sec.  213.238. Thus, a
track owner would not be required to implement the remedial actions
listed in
[[Page 72539]]
the table contained in Sec.  213.113(c) until a suspected location is
field-verified, or, as provided in proposed paragraph (e)(5), the
required time period to conduct field verification has elapsed.
Proposed paragraph (e)(4) goes on to state that once a suspected
location is field-verified and determined to be a defect, the track
owner must immediately perform all remedial actions required by Sec.
213.113(a).
    Proposed paragraph (e)(5) would require that if a suspected
location is not field-verified within the time required by proposed
paragraph (e)(1) or (2), it must be immediately protected by applying
the most restrictive remedial action outlined under the table contained
in Sec.  213.113(c) for the suspected type and size of the suspected
defect. The protection must cover a sufficient segment of track to
assure coverage of the suspected location until field verification.
Thus, if the size of a defect is not immediately clear, the protection
must provide a safety margin and cover a larger segment of track to
ensure the limits of the suspected defect are included in the
protection.
    Proposed paragraph (f) would require that each suspect location be
recorded with repeatable accuracy that allows for the location to be
accurately located for subsequent field verification and remedial
action. As the continuous testing process allows track owners to
conduct field verifications well after the inspection equipment
traverses a track segment, it is critical that each suspect location be
accurately identified. A cornerstone of the entire process is that each
suspect location is recorded with repeatable accuracy such that true
and valid field verifications may be conducted. This can be
accomplished through a variety or combination of methods, including use
of GPS and measuring from known reference points. When GPS is used,
procedures must be adopted that allow verifiers to be able to
accurately find those suspect locations in areas where the signals for
GPS are compromised or otherwise rendered unreliable, such as in
tunnels, cut sections, or near buildings. When determining the
appropriate procedures to follow, track owners should be particularly
mindful of scenarios in which GPS is unreliable and few track features
exist, such as can result with some rail that is rolled in weld-free
segments that exceed one-tenth of a mile in length.
    Proposed paragraph (g) would require that track owners utilizing
continuous rail testing submit an annual report to the FRA Associate
Administrator for Railroad Safety/Chief Safety Officer no later than 45
days following the end of each calendar year. This would apply only to
track owners that have conducted continuous rail testing within the
previous calendar year. Continuous testing programs have been trialed
through temporary waivers granted to several railroads throughout the
country; however, it is important to continue monitoring the overall
impacts and efficacy of the process. As proposed, only railroads
choosing to conduct continuous rail testing would be required to submit
an annual report. This proposed reporting requirement is designed to
provide sufficient data to enable a comparison of the results and
effectiveness of continuous rail testing, as compared to the results
and effectiveness of inspections by railroads who do not use continuous
rail testing. The annual report will also allow FRA to monitor the
effectiveness of individual railroads' specific continuous testing
processes and programs, and compare results on a micro level for
specific railroads. Furthermore, as innovation and technology evolve,
it is critical to the success of the safety improvement process to
collect and analyze this data for positive trend exploration.
    FRA will utilize the data provided in each railroad's annual report
to match service failure rates with testing frequencies to correlate
the impact of increased testing frequencies and the run over run
comparison data to the accident rate. This will help ensure that the
anticipated safety improvements resulting from the proposed
modifications are realized. In addition, FRA intends to analyze and
share the data with railroads to inform continuous process improvement,
as done during the lengthy waiver history for continuous rail testing.
Finally, the information should also serve as a valuable input to FRA's
ongoing research on potential commonalities in rail geometry and rail
defect growth patterns, to aid the industry in its continuous effort to
mitigate the risk of track caused derailments.
    The annual report must be in a reasonably usable format, or its
native electronic format, and contain at least all the information
required by proposed paragraphs (g)(1) through (10) for each track
segment requiring internal rail inspection under either Sec.  213.237
or Sec.  213.339. Specifically, the submission must include the track
owner's name (g)(1); the name of the railroad division and subdivision
(g)(2); the segment identifier, milepost limits, and length of each
segment (g)(3); the track number (g)(4); the class of track (g)(5); the
annual million gross tons over that segment of track (g)(6); the total
number of internal rail tests conducted over each track (g)(7); the
type of internal rail test conducted on the segment, whether continuous
rail test or stop-and-verify (g)(8); and the total number of defects
identified over each track segment (g)(9), which would include only the
defects that have been field-verified and determined to be actual
defects. Proposed paragraph (g)(10) would also require the total number
of service failures on each track segment.
    This information would be necessary for FRA to ensure safe
operations and monitor the effectiveness of continuous rail testing and
the requirements of this regulation as proposed. For FRA to fulfill its
responsibilities to oversee railroad safety and the implementation of
continuous testing, the agency must receive sufficient data to
effectively perform its functions, while not placing undue burden on
the industry. Accordingly, the proposed annual reporting requirements
are intended to provide a high-level review for FRA to ensure that the
continuous testing process would be consistently carried out in a
proper manner.
Section 213.241 Inspection Records
    Section 213.241 provides that track owners keep a record of each
inspection required to be performed under part 213, subpart F.
Paragraph (b) of this section requires that each record of inspection
under certain sections include specific information, be prepared on the
day the inspection is made, and be signed by the person making the
inspection. FRA proposes revising paragraph (b) by adding Sec.  213.137
to the list of sections that require inspections for which records must
comply with the requirements of paragraph (b). This addition is
necessitated by the proposed revision to Sec.  213.137, specifically
the incorporation of the waiver allowing the use of FBFs. One of the
requirements for the use of FBFs under proposed Sec.  213.137(e)(3) is
that they must be inspected at specific intervals. Records of those
inspections must be kept and comply with Sec.  213.241(b).
    FRA proposes adding the phrase ``or otherwise certified'' after
``signed'' in paragraph (b), and thus require that records be ``signed
or otherwise certified by the person making the inspection.'' This is
meant to clarify that a record does not have to be physically signed by
the person making the inspection. The track owner can choose to use
other methods to allow an inspector to certify an inspection record,
provided that the method accurately and securely identifies the person
making the inspection. Third, FRA proposes to add
[[Page 72540]]
three elements to the list of information that must be included in an
inspection record. Specifically, FRA proposes that the record must
include the author of the record, the type of track inspected, and the
location of the inspection. FRA believes this information is already
included in most, if not all, of the inspection records currently
produced by the railroad industry. The proposal is therefore intended
to emphasize the importance of this information and should have little,
if any, impact on recordkeeping practices. The remaining edits to
paragraph (b) are simply technical edits that have no effect on the
intent of the paragraph. Specifically, FRA proposes changing ``owner''
to ``track owner'' at the beginning of the last two sentences. FRA also
proposes removing ``either'' before the word ``maintained'' in the last
sentence and changing ``10 days notice'' to ``10 days' notice.''
    FRA proposes redesignating current paragraphs (f) and (g) as
paragraphs (i) and (j), respectively, and revising them, and adding new
paragraphs (f), (g), and (h). Proposed paragraph (f) would list the
recordkeeping requirements for continuous testing performed under
proposed Sec.  213.240. These are similar to the current recordkeeping
requirements for internal rail inspections conducted under Sec.
213.237. Proposed paragraph (f)(1) would require the track owner's
continuous rail testing records include all information required under
proposed Sec.  213.240(e). Broadly, this would require the track owner
to produce a report containing a systematic listing of all suspected
locations, and is explained in greater detail above. Proposed paragraph
(f)(2) would require that the records state whether the test is being
conducted to satisfy the requirements for an internal rail inspection
under Sec.  213.237. As discussed in more detail above, this is
necessary information because it is relevant to whether the track owner
must comply with the field verification time limits in proposed Sec.
213.240(e). Proposed paragraph (f)(3) would require that the continuous
rail testing records include the date and time of the beginning and end
of each continuous test run, as well as the date and time each suspect
location was identified and field-verified. Proposed paragraph (f)(4)
would require that the continuous testing records include the
determination made for each suspect location after field verification.
This must include, at a minimum, the location and type of defect, the
size of the defect, and the initial remedial action taken, if required,
and the date thereof. Finally, proposed paragraph (f)(5) would require
that these records be kept for two years from the date of the
inspection, or one year after initial remedial action, whichever is
later.
    Proposed paragraph (g) is similar to existing paragraph (e). It
would require any track owner that elects to conduct continuous testing
under proposed Sec.  213.240 to maintain records sufficient for
monitoring and determining compliance with all applicable regulations
and make those records available to FRA during regular business hours
following reasonable notice. For example, the track owner must keep
sufficient records of procedures enacted to comply with proposed Sec.
213.240(b) as well qualification procedures under Sec.  213.238. The
meaning of the term ``reasonable notice'' would depend on the specific
facts of each situation (e.g., time of day, day of the week, number of
records requested, etc.).
    Proposed paragraph (h) states that track inspection records,
meaning each inspection record created under Sec.  213.241, shall be
available to persons who performed the inspections and to persons
performing subsequent inspections of the track segment. This is vitally
important to ensure the quality and effectiveness of track inspections,
and FRA believes that in most cases this is already being done, as it
is required, at least for electronic inspection records, under existing
Sec.  213.241(g)(7). A person performing a subsequent inspection must
have an understanding of the track condition during previous
inspections to effectively recognize significant changes in the track
condition as well as ensure that previously-noted defects are
adequately protected, have been adequately remediated, or have not
degraded to a degree that requires further action.
    FRA proposes redesignating existing paragraph (f) as paragraph (i)
and revising it by adding to the end of the paragraph ``during regular
business hours following reasonable notice.'' The meaning of the term
``reasonable notice'' would depend on the specific facts of each
situation (e.g., time of day, day of the week, number of records
requested, etc.).
    FRA proposes redesignating existing paragraph (g) as paragraph (j)
and revising it. FRA first proposes to reword the introductory language
of the paragraph (g) to make it clearer. The new language allows a
track owner to create, retain, transmit, store, and retrieve records by
electronic means for purposes of complying with this section. The
proposed change to this language is not meant to affect the meaning or
intent of this paragraph.
    Further, in redesignating paragraph (g) as paragraph (j), FRA would
remove existing paragraphs (g)(5) through (7). Existing paragraph
(g)(1) would be redesignated as paragraph (j)(3), existing paragraph
(g)(2) would be redesignated as paragraph (j)(5), and existing
paragraph (g)(3) would be redesignated as paragraph (j)(4). Proposed
new paragraphs (j)(1) and (2) would be added. FRA believes the proposal
would preserve the intent of existing paragraph (g), ensuring the
integrity of electronic records, while increasing clarity and allowing
track owners additional flexibility without negatively impacting
safety.
    Proposed paragraph (j)(1) would require that the system used to
generate the electronic records meet all the requirements and include
all the information required under subpart F. Proposed paragraph (j)(2)
would require that the track owner monitor its electronic records
database to ensure record accuracy. FRA would intentionally leave it up
to the track owner to determine the best way to effectively monitor,
protect, and maintain the integrity and accuracy of its records
database. FRA proposes that existing paragraph (g)(1) be redesignated
as paragraph (j)(3) and revised to require that the electronic system
be designed to uniquely identify the author of each record and prohibit
two persons from having the same electronic identity. This is a
simplified rephrasing of the requirements of existing paragraph (g)(1).
    FRA proposes that existing paragraph (g)(3) be redesignated as
paragraph (j)(4) and slightly revised. Proposed paragraph (j)(4) would
require that the electronic system ensures each record cannot be
modified or replaced in the system once the record is completed. The
one meaningful change is that proposed paragraph (j)(4) would prohibit
modification once the record is completed while existing paragraph
(g)(3) prohibits modification once the record is transmitted and
stored. FRA recognizes that there are times when an inspection record
may include information that cannot be entered until a later date, such
as the date of final repair. Proposed paragraph (j)(4) would therefore
allow for modification of a record, provided the modification is made
by the original author of the record or the author of the modification
is identified in the record, after the record has been transmitted but
before the record has been fully completed. This would not permit
someone other than the author of the record to modify existing
information at a later date, such
[[Page 72541]]
as track measurements or listings of reported defects.
    FRA proposes that existing paragraph (g)(2) be redesignated as
paragraph (j)(5) and revised to require that electronic storage of
records be initiated by the person making the inspection within 72
hours following completion of the inspection. Existing paragraph (g)(2)
requires that electronic storage be initiated within 24 hours of
completion of the inspection. FRA believes that giving track owners an
additional 48 hours to upload inspection records would provide needed
flexibility without negatively impacting safety. For example, where an
inspector does not have internet connection or where their computer
fails, it may take more than 24 hours to upload the inspection report.
The new 72-hour requirement would also take into account the
possibility of technical issues occurring late on a Friday that cannot
be remedied until the following Monday, due to limited availability of
technical support personnel.
    FRA proposes removing existing paragraph (g)(5), which requires
that the electronic system provide for maintenance of the inspection
records without corruption or loss of data. FRA believes that proposed
paragraph (j)(2), which would require that the track owner monitor the
database to ensure record accuracy, would make existing paragraph
(g)(5) redundant. FRA also proposes removing existing paragraph (g)(6),
which generally requires that track owners make paper copies of
electronic records available to FRA. FRA believes that this would also
be redundant given that existing paragraph (f) already requires this,
and would continue to require as redesignated paragraph (i). Finally,
FRA proposes removing existing paragraph (g)(7), which requires that
electronic track inspection records be kept available to persons who
performed the inspections and to persons performing subsequent
inspections. FRA believes this would be made redundant with the
addition of proposed paragraph (h), which would require the same for
all records.
Section 213.305 Designation of Qualified Individuals; General
Qualifications
    Proposed revisions are intended to mirror the relevant proposed
revisions to Sec.  213.7, discussed above. Section 213.305 addresses
the qualification of individuals responsible for the maintenance and
inspection of Class 6 and above track. Currently, paragraphs (a)(3),
(b)(3), and (c)(4) each require that a qualified person ``[b]e
authorized in writing'' or possess ``[w]ritten authorization from the
track owner.'' Although FRA believes that the term ``written'' and ``in
writing'' can be interpreted to encompass both physical hardcopies of
an authorization as well as electronic versions, to avoid any possible
confusion, FRA proposes to remove the terms ``written'' and ``in
writing.'' These changes would make clear that the required
authorizations under these paragraphs may be recorded and conveyed
either in hardcopy or electronic form.
    FRA proposes to revise and reorganize paragraph (e) to clarify the
type of information track owners must include in their records of
designations made under paragraphs (a) through (d). First, for the
reasons stated above, the term ``written'' would be removed. Records of
designations made under Sec.  213.305 can be either in physical or
electronic form. FRA proposes to add new paragraph (e)(2) to require
records of designations include the date each designation was made. The
date of an individual's designation is relevant and important
information both to the track owner and to FRA, and FRA believes most,
if not all, track owners already include this in their designation
records. To incorporate this proposed revision, existing paragraph
(e)(2) would be redesignated as paragraph (e)(3).
    FRA also proposes to remove the first sentence of existing
paragraph (e)(3), because it is redundant when considering the
requirements of Sec.  213.369. The second sentence of existing
paragraph (e)(3) would be redesignated as paragraph (f) and revised. As
under the existing regulation, a track owner would be required to make
the records kept under paragraph (e) available for inspection and
copying by FRA. FRA proposes rephrasing the sentence to require that
FRA make its request for records during normal business hours and give
the track owner ``reasonable notice'' before requiring production. The
meaning of the term ``reasonable notice'' would depend on the specific
facts of each situation (e.g., time of day, day of the week, number of
records requested, etc.).
Section 213.365 Visual Track Inspections
    Proposed revisions are intended to mirror the relevant proposed
revisions to Sec.  213.233, discussed above. FRA first proposes to
revise the heading for Sec.  213.365 by adding the word ``track'' after
``visual'' so that the heading reads ``Visual track inspections.'' This
change is not meant to affect the intent of the section. Because other
sections in part 213 cover different types of inspections (e.g.,
automated inspections, inspections of rail, etc.), the proposed heading
change is simply intended to clarify that this section deals
specifically with visual track inspections. This proposal is also
consistent with the current heading for the corresponding non-high-
speed track section, Sec.  213.233, ``Track inspections.'' As discussed
above, FRA proposes to revise the heading for Sec.  213.233 so that the
headings are the same for both Sec. Sec.  213.233 and 213.365.
    FRA also proposes revising paragraph (b) to change the terms
``riding over'' and ``passing over'' to ``traversing,'' and ``is
riding'' and ``are riding'' to ``traverses'' and ``traverse.''
Additionally, FRA proposes changing ``is actually'' to ``must be'' in
paragraph (b)(3). These changes are not meant to affect the meaning of
Sec.  213.365, but instead are made for grammatical consistency.
    FRA proposes removing the last sentence of paragraph (b)(3), also
known as the high-density commuter line exception. It is FRA's
understanding that no railroads currently utilize this exception.
Paragraph (b)(3) requires, among other things, that each main track be
traversed by a vehicle or inspector on foot at least once every two
weeks, and every siding at least every month. The high-density commuter
line exception applies where track time does not permit on-track
vehicle inspection and where track centers are 15 feet or less apart
and exempts those operations from the inspection method requirements of
paragraph (b)(3). FRA's proposal to remove this exception is consistent
with NTSB recommendation R-14-11, section 11409 of the FAST Act, and
the proposal to remove the counterpart to this section in Sec.
213.233(b)(3), as discussed above in the section-by-section analysis
for Sec.  213.233(b)(3) and in section IV.B.i of this NPRM.
    FRA proposes two revisions to paragraph (c). First, FRA proposes to
add the word ``visual'' before ``track inspection'' in the introductory
text. This would simply be to make paragraph (c) consistent with the
heading for Sec.  213.365 and would have no effect on the meaning of
paragraph (c). Second, FRA proposes adding footnote 1 after the word
``weekly'' in the table in paragraph (c). The footnote defines the term
``weekly'' to be any seven-day period beginning on Sunday and ending on
Saturday. This definition is consistent with FRA's past interpretation
and enforcement practice, as well as FRA's public guidance included in
Volume II, Chapter 1, of the Track and Rail and Infrastructure
Integrity Compliance Manual, March 1,
[[Page 72542]]
2018, available on FRA's public eLibrary (https://www.fra.dot.gov/eLib/Find).
    FRA also proposes to revise paragraph (d). Specifically, FRA would
add the phrase ``the Sec.  213.305 qualified'' at the beginning of the
paragraph to clarify that ``the person'' making the inspection that the
existing rule text refers to is the qualified track inspector
designated under Sec.  213.305. Additionally, FRA proposes adding a
sentence at the end of paragraph (d) stating that any subsequent
movements to facilitate repairs on track that is out of service must be
authorized by a Sec.  213.305 qualified person. This section is silent
as to whether or when movement over track that is out of service is
permissible. FRA recognizes that certain movements are necessary to
facilitate repairs and does not interpret or enforce the current
regulatory language to bar track owners from moving equipment and
materials to do so on track that is out of service. The proposed
revision is meant to embody that practice and interpretation into the
regulation and prevent possible confusion.
Section 213.369 Inspection Records
    Proposed revisions are intended to mirror the relevant proposed
revisions to Sec.  213.241, discussed above. FRA proposes adding the
phrase ``or otherwise certified'' after ``signed'' in paragraph (b),
and thus require that records be ``signed or otherwise certified by the
person making the inspection.'' This is meant to clarify that a record
does not have to be physically signed by the person making the
inspection. The track owner can choose to use other methods to allow an
inspector to certify an inspection record, provided that the method
accurately and securely signifies the identity of the person making the
inspection. Next, FRA proposes to add three elements to the list of
information that must be included in an inspection record.
Specifically, FRA proposes that the record must include the author of
the record, the type of track inspected, and the location of the
inspection. FRA believe this information is already included in most,
if not all, of the inspection records currently produced by the
railroad industry. The proposal is therefore intended to emphasize the
importance of this information and should have little, if any, impact
on recordkeeping practice. The remaining edits to paragraph (b) are
simply technical edits that have no effect on the intent or effect of
the paragraph. Specifically, FRA proposes changing ``owner'' to ``track
owner'' at the beginning of the last two sentences. FRA also proposes
removing ``either'' before the word ``maintained'' in the last sentence
and changing ``10 days notice'' to ``10 days' notice.''
    FRA proposes redesignating paragraphs (d), (e), and (f) as
paragraphs (g), (h), and (i), respectively, and revising them, and
adding new paragraphs (d), (e), and (f). Proposed paragraph (d) would
list the recordkeeping requirements for continuous testing performed
under proposed Sec.  213.240. These are similar to the current
recordkeeping requirements for internal rail inspections conducted
under Sec.  213.339. Proposed paragraph (d)(1) would require the track
owner's continuous rail testing records include all information
required under proposed Sec.  213.240(e). Broadly, this would require
the track owner to produce a report containing a systematic listing of
all suspected locations, and is explained in greater detail above.
Proposed paragraph (d)(2) would require that the records state whether
the test is being conducted to satisfy the requirements for an internal
rail inspection under Sec.  213.339. As discussed in more detail above,
this is necessary information because it is relevant to whether the
track owner must comply with the field verification time limits in
proposed Sec.  213.240(e). Proposed paragraph (d)(3) would require that
the continuous rail testing records include the date and time for the
beginning and end of each continuous test run, as well as the date and
time each suspect location was identified and field-verified. Proposed
paragraph (d)(4) would require that the continuous testing records
include the determination made for each suspect location after field
verification. This must include, at a minimum, the location and type of
defect, the size of the defect, and the initial remedial action taken,
if required, and the date thereof. Finally, proposed paragraph (d)(5)
would require that these records be kept for two years from the date of
the inspection, or one year after initial remedial action, whichever is
later.
    Proposed paragraph (e) would require any track owner that elects to
conduct continuous testing under proposed Sec.  213.240 to maintain
records sufficient for monitoring and determining compliance with all
applicable regulations and make those records available to FRA during
regular business hours following reasonable notice. For example, the
track owner must keep sufficient records of procedures developed to
comply with proposed Sec.  213.240(b) as well qualification procedures
under Sec.  213.238. The meaning of the term ``reasonable notice''
would depend on the specific facts of each situation (e.g., time of
day, day of the week, number of records requested, etc.).
    Proposed paragraph (f) states that track inspection records,
meaning each inspection record created under Sec.  213.369, shall be
available to persons who performed the inspections and to persons
performing subsequent inspections of the track segment. This is vitally
important to ensure the quality and effectiveness of track inspections,
and FRA believes that in most cases this is already being done, as it
is required, at least for electronic inspection records, under existing
Sec.  213.369(e)(7). A person performing a subsequent inspection must
have an understanding of the track condition during previous
inspections to effectively recognize significant changes in the track
condition as well as ensure that previously noted defects are
adequately protected, have been adequately remediated, or have not
degraded to a degree that requires further action.
    As noted above, FRA proposes redesignating existing paragraph (d)
as paragraph (g), and revising it, principally by adding to the end of
the paragraph ``upon request during regular business hours following
reasonable notice.'' The meaning of the term ``reasonable notice''
would depend on the specific facts of each situation (e.g., time of
day, day of the week, number of records requested, etc.).
    FRA also proposes redesignating existing paragraph (e) as paragraph
(h), and revising it. FRA first proposes to reword the introductory
language of existing paragraph (e) to make it clearer. The new language
would allow a track owner to create, retain, transmit, store, and
retrieve records by electronic means for purposes of complying with
this section. The proposed change to this language is not meant to
affect the meaning or intent of this paragraph.
    Further, in redesignating paragraph (e) as paragraph (h), FRA would
remove existing paragraphs (e)(5) through (7). Existing paragraph
(e)(1) would be redesignated as paragraph (h)(3), existing paragraph
(e)(2) would be redesignated as paragraph (h)(5), and existing
paragraph (e)(3) would be redesignated as paragraph (h)(4). Proposed
new paragraphs (e)(1) and (2) would be added. FRA believes the proposal
would preserve the intent of existing paragraph (e), ensuring the
integrity of electronic records, while increasing clarity and allowing
track owners additional flexibility without negatively impact safety.
    Proposed paragraph (h)(1) would require that the system used to
generate the electronic records meet all the requirements and include
all the
[[Page 72543]]
information required under subpart G. Proposed paragraph (h)(2) would
require that the track owner monitor its electronic records database to
ensure record accuracy. FRA would intentionally leave it up to the
track owner to determine the best way to effectively monitor, protect,
and maintain the integrity and accuracy of its records database. FRA
proposes that existing paragraph (e)(1) be redesignated as paragraph
(h)(3) and revised to require that the electronic system be designed to
uniquely identify the author of each record and prohibit two persons
from having the same electronic identity. This is a simplified
rephrasing of the requirements of existing paragraph (e)(1).
    FRA proposes that existing paragraph (e)(3) be redesignated as
paragraph (h)(4) and slightly revised. Proposed paragraph (h)(4) would
require that the electronic system ensures each record cannot be
modified or replaced in the system once the record is completed. The
one meaningful change is that proposed paragraph (h)(4) would prohibit
modification once the record is completed; instead, existing paragraph
(e)(3) prohibits modification once the record is transmitted and
stored. FRA recognizes that there are times when an inspection record
may include information that cannot be entered until a later date, such
as the date of final repair. Proposed paragraph (h)(4) would therefore
allow for modification of a record, provided the modification is made
by the original author of the record or the author of the modification
is identified in the record, after the record has been transmitted but
before the record has been fully completed. This would not permit
someone other than the author of the record to modify existing
information at a later date, such as track measurements or listings of
reported defects.
    FRA proposes that existing paragraph (e)(2) be redesignated as
paragraph (h)(5) and revised to require that electronic storage of
records be initiated by the person making the inspection within 72
hours following completion of the inspection. Existing paragraph (e)(2)
requires that electronic storage be initiated within 24 hours of
completion of the inspection. FRA believes that giving track owners an
additional 48 hours to upload inspection records would provide needed
flexibility without negatively impacting safety. For example, where an
inspector does not have internet connection or experiences computer
failure, it may take more than 24 hours to upload the inspection
report. The new 72-hour requirement would also take into account the
possibility of technical issues occurring late on a Friday that cannot
be remedied until the following Monday, due to limited availability of
technical support personnel.
    FRA proposes removing existing paragraph (e)(5), which requires
that the electronic system provide for maintenance of the inspection
records without corruption or loss of data. FRA believes that proposed
paragraph (h)(2), which would require that the track owner monitor the
database to ensure record accuracy, would make existing paragraph
(e)(5) redundant. FRA also proposes removing existing paragraph (e)(6),
which generally requires that track owners make paper copies of
electronic records available to FRA. FRA believes that this would also
be redundant given that existing paragraph (d) already requires this,
and would continue to require as redesignated paragraph (g). Finally,
FRA proposes removing existing paragraph (e)(7), which requires that
electronic track inspection records be kept available to persons who
performed the inspections and to persons performing subsequent
inspections. FRA believes this would be made redundant with the
addition of proposed paragraph (f), which would require the same for
all records.
    FRA is redesignating paragraph (f) as paragraph (i) and slightly
revising it for punctuation; no substantive change is intended.
VI. Regulatory Impact and Notices
A. Executive Order 12866, and DOT Regulatory Policies and Procedures
    This proposed rule is a significant regulatory action within the
meaning of Executive Order 12866 (E.O. 12866) and DOT policies and
procedures. See DOT Order 2100.6, Policies and Procedures for
Rulemaking (Dec. 20, 2018), available at https://cms.dot.gov/sites/dot.gov/files/docs/regulations/328561/dot-order-21006-rulemaking-process-signed-122018.pdf. Additionally, this proposed rule is
considered an E.O. 13771 deregulatory action. Details on the estimated
cost savings of this proposed rule can be found in the proposed rule's
Regulatory Impact Analysis, which FRA has prepared and placed in the
docket (docket number FRA-2018-0104). The analysis details estimated
costs and cost savings the railroad track owners regulated by the rule
are likely to see over a 10-year period.
    FRA proposes to revise its regulations governing the minimum safety
requirements for railroad track. The proposed changes include:
Permitting the inspection of rail using continuous rail testing;
allowing the use of flange-bearing frogs in crossing diamonds; relaxing
the guard check gage limits on heavy-point frogs used in Class 5 track;
removing the high-density commuter line exception; and other
miscellaneous revisions.
    The proposed revisions would benefit railroad track owners and the
public by reducing unnecessary costs and incentivizing innovation,
while not negatively affecting safety.
    The following table shows the net cost savings of this proposed
rule, over the 10-year analysis.
                                          Net Cost Savings, in Millions
                                                 [2018 dollars]
----------------------------------------------------------------------------------------------------------------
                                                  Present  value  Present  value
                                                         7%              3%       Annualized  7%  Annualized  3%
----------------------------------------------------------------------------------------------------------------
Costs...........................................           $25.9           $31.4            $3.7            $3.7
Cost Savings....................................           148.7           180.3            21.2            21.1
                                                 ---------------------------------------------------------------
    Net Cost Savings............................           122.8           148.9            17.5            17.4
----------------------------------------------------------------------------------------------------------------
    The estimated 10-year net cost savings of the proposed rule would
be $122.8 million (7%) and $148.9 million (3%). The annualized net cost
savings would be $17.5 million (7%) and $17.4 million (3%).
    The additional flexibility of this proposed rule would result in
cost savings for railroad track owners. Continuous rail testing would
reduce overtime hours for maintenance-of-way employees. The flange-
bearing frog
[[Page 72544]]
changes would eliminate the required inspection time during the first
week when compared to current conditions under the FRA waiver. The
continuous testing, flange-bearing frog, and heavy-point frog changes
would eliminate the need for and costs of applying for waivers to
implement such a testing practice and track components. In fact, fewer
slow orders would be needed with continuous testing, which would result
in a significant cost savings.
    The table below presents the estimated cost savings associated with
the proposed rule, over the 10-year analysis.
                                   Summary of Total Cost Savings, in Millions
----------------------------------------------------------------------------------------------------------------
                                                  Present  value  Present  value
                     Section                             7%              3%       Annualized  7%  Annualized  3%
----------------------------------------------------------------------------------------------------------------
Flange Bearing Frog Inspections.................          $0.191          $0.223          $0.027          $0.026
Frog Waiver Savings.............................           0.013           0.016           0.002           0.002
Continuous Testing Labor Cost Savings...........           7.086           8.590           1.009           1.007
Slow Orders.....................................         141.329         171.340          20.122          20.086
Continuous Testing Waiver Savings...............           0.130           0.154           0.012           0.010
                                                 ---------------------------------------------------------------
    Total.......................................         148.749         180.324          21.172          21.132
----------------------------------------------------------------------------------------------------------------
    The estimated 10-year total cost savings of the proposed rule would
be $148.7 million (discounted at 7%) and $180.3 million (discounted at
3%). The annualized cost savings would be $21.2 million (7%) and $21.1
million (3%).
    If railroad track owners choose to take advantage of the cost
savings from this proposed rule, they would incur additional labor
costs associated with continuous rail testing. These costs are
voluntary because track owners would only incur them if they choose to
operate continuous rail testing vehicles. The table below presents the
estimated costs, over the 10-year analysis.
                                       Summary of Total Costs, in Millions
----------------------------------------------------------------------------------------------------------------
                                                  Present  value  Present  value
                                                         7%              3%       Annualized  7%  Annualized  3%
----------------------------------------------------------------------------------------------------------------
Continuous Testing..............................           $25.9           $31.4            $3.7            $3.7
----------------------------------------------------------------------------------------------------------------
    The estimated 10-year costs of the proposed rule would be $25.9
million (discounted at 7%) and $31.4 million (discounted at 3%). The
annualized costs would be $3.7 million (at both 7% and 3%).
    The proposed rule would also encourage the use of continuous rail
testing, which may reduce certain types of derailments. FRA does not
have sufficient data to estimate the reduction in derailments. However,
FRA expects the proposed rule to result in safety benefits from fewer
injuries, fatalities, and property and track damage.
B. Regulatory Flexibility Act
    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency
review of proposed and final rules to assess their impacts 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 economic impact on a
substantial number of small entities. FRA has not determined whether
this proposed rule would have a significant economic impact on a
substantial number of small entities.
    Therefore, FRA prepared an IRFA which is included as an appendix to
the accompanying Regulatory Impact Analysis and available in the docket
for this rulemaking (FRA 2018-0104) to aid the public in commenting on
the potential small business impacts of the requirements in this NPRM.
C. Paperwork Reduction Act
    The information collection requirements in this proposed rule are
being 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.
The sections that contain the current and new information collection
requirements and the estimated time to fulfill each requirement are as
follows:
----------------------------------------------------------------------------------------------------------------
                                                                                                   Total annual
         CFR section              Respondent      Total annual     Average time    Total annual     dollar cost
                                   universe        responses       per response    burden hours   equivalent \3\
----------------------------------------------------------------------------------------------------------------
213.4--Excepted track--        236 railroads..  15 notices.....  10 minutes.....               3            $219
 Notification to FRA about
 removal of excepted track.
213.5--Responsibility of       744 railroads..  10 written       1 hour.........              10             730
 track owners.                                   notices.
213.7--Designation of          728 railroads..  1,500 names....  10 minutes.....             250          18,250
 qualified persons to
 supervise certain renewals
 and inspect track--
 Designations: Names on list
 with written authorization.
213.17--Waivers..............  744 railroads..  6 petitions....  2 hours........              12             876
213.57--Curves, elevation and
 speed limitations:
[[Page 72545]]

    --Request to FRA for       744 railroads..  2 requests.....  8 hours........              16           1,168
     vehicle type approval.
    --Written Notification to  744 railroads..  2 notifications  2 hours........               4             292
     FRA prior to
     implementation of higher
     curving speeds.
    --Written consent of       744 railroads..  2 written        45 minutes.....               2             146
     track owners obtained by                    consents.
     railroad providing
     service over that track.
213.110--Gage restraint
 measurement systems (GRMS):
    --Implementing GRMS--      744 railroads..  5 notifications  45 minutes/4                  8             365
     notices & reports.                          + 1 tech. rpt.   hours.
    --GRMS vehicle output      744 railroads..  50 reports.....  5 minutes......               4             288
     reports.
    --GRMS vehicle exception   744 railroads..  50 reports.....  5 minutes......               4             288
     reports.
    --GRMS/PTLF--procedures    744 railroads..  1 proc. doc....  2 hours........               2             146
     for data integrity.
    --GRMS inspection records  744 railroads..  50 records.....  1 hour.........              50           3,650
213.118--Continuous welded
 rail (CWR); plan review and
 approval:
    --Revised plans w/         436 railroads..  8 plans........  4 hours........              32           2,336
     procedures for CWR.
    --Notification to FRA and  436 RRs/80,000   800              15 seconds.....               3             219
     RR employees of CWR plan   employees.       notifications.
     effective date.
    --Written submissions      744 railroads..  7 written        2 hours........              14           1,022
     after plan disapproval.                     submissions.
    --Final FRA disapproval    744 railroads..  7 amended plans  1 hour.........               7             511
     and plan amendment.
213.119--Continuous welded
 rail (CWR); plan contents:
    --Record keeping for       436 railroads..  60,000 records.  15 seconds.....             250          18,250
     special inspections.
    --Record keeping for CWR   436 railroads..  180,000 rcds...  2 minutes......           6,000         438,000
     rail joints.
    --Periodic records for     436 railroads..  480,000 rcds...  2 minutes......          16,000       1,168,000
     CWR rail adjustments.
213.137--New Requirements--
 Frogs:
    --Railroad documentation   744 railroads..  5 railroad       30 minutes.....               3             219
     of flange-bearing frogs                     documents.
     (FBFs) location,
     crossing angle, tonnage,
     speed, directions, and
     type of traffic.
    --Inspection of FBF        744 railroads..  240 inspection/  15 minutes.....              60           4,380
     crossing diamond                            records.
     installations and
     records.
    --RR preparation and       744 railroads..  7 manuals......  30 minutes.....               4             292
     distribution of insert
     to maintenance manuals
     for responsible
     personnel for the
     inspection and repair of
     FBF crossing diamonds.
213.143--New Requirements--    744 railroads..  10 HPF turnout   30 minutes.....               5             365
 Frog guard rails and guard                      records.
 faces; gage (FRA request
 from RR/track owner of
 record of the location and
 description of each turnout
 containing a heavy-point
 frog (HPF)).
213.237--Inspection of Rail:
    --Detailed request to FRA  10 railroads...  10 requests....  15 minutes.....               3             219
     to change designation of
     a rail inspection
     segment or establish a
     new segment.
    --Notification to FRA and  10 railroads...  50 notices +     15 minutes.....              43           3,139
     all affected employees                      120 notices/
     of designation's                            bulletins.
     effective date after
     FRA's approval/
     conditional approval.
    --Notice to FRA that       10 railroads...  12 notices.....  15 minutes.....               3             219
     service failure rate
     target in paragraph (a)
     of this section is not
     achieved.
    --Explanation to FRA as    10 railroads...  12 letters of    15 minutes.....               6             438
     to why performance                          explanation +
     target was not achieved                     12 plans.
     and provision to FRA of
     remedial action plan.
213.240--New Requirements--    12 railroads...  12 reports.....  4 hours........              48           3,504
 Continuous rail testing.
213.241--Inspection records..  744 railroads..  1,375,000        10 minutes.....         229,167      16,729,191
                                                 records.
[[Page 72546]]

213.303--Responsibility for    2 railroads....  1 notification.  1 hour.........               1              73
 compliance.
213.305--Designation of
 qualified individuals;
 general qualifications:
    --Designations (partially  2 railroads....  200 railroad     10 minutes.....              33           2,409
     qualified).                                 designations.
    --RR produced designation  2 railroads....  20 records.....  30 minutes.....              10             730
     record upon FRA request.
213.317--Waivers.............  2 railroads....  1 petition.....  2 hours........               2             146
213.329--Curves, elevation
 and speed limitations:
    --FRA approval of          2 railroads....  2 docs.........  8 hours........              16           1,168
     qualified vehicle types
     based on results of
     testing.
    --Written notification to  2 railroads....  2 notices......  2 hours........               4             292
     FRA 30 days prior to
     implementation of higher
     curving speeds.
    --Written Consent of       2 railroads....  2 written        45 minutes.....               2             146
     Other Affected Track                        consents.
     Owners by Railroad.
213.333--Automated Vehicle
 Insp. System--Measurements:
    --TGMS Output/Exception    7 railroads....  7 reports......  1 hour.........               7             504
     Reports.
213.341--Initial inspection
 of new rail & welds:
    --Inspection of field      2 railroads....  800 records....  2 minutes......              27           1,971
     welds.
213.343--Continuous welded
 rail (CWR):
    --Revised plans w/         2 railroads....  1 plan.........  4 hours........               4             292
     procedures for CWR.
    --Notification to FRA and  2 RRs/80,000     100              15 seconds.....             0.4              30
     RR employees of CWR plan   employees.       notifications.
     effective date.
    --Written submissions      2 railroads....  1 written        2 hours........               2             146
     after plan disapproval.                     submission.
    --Final FRA disapproval    2 railroads....  1 amended plan.  1 hour.........               1              73
     and plan amendment.
213.345--Vehicle
 qualification testing:
    --Vehicle qualification    2 railroads....  2 programs.....  120 hours......             240          17,520
     program for all vehicle
     types operating at track
     Class 6 speeds or above.
    --Previously qualified     2 railroads....  2 programs.....  40 hours.......              80           5,840
     vehicle types
     qualification programs.
    --Written consent of       2 railroads....  2 written        8 hours........              16           1,760
     other affected track                        consents.
     owners by railroad.
213.369--Inspection Records:
    --Record of inspection of  2 railroads....  15,000 records.  1 minute.......             250          18,250
     track.
    --Internal defect          2 railroads....  50 records.....  5 minutes......               4             292
     inspections and remedial
     action taken.
                              ----------------------------------------------------------------------------------
        Total................  744 railroads..  2,114,200......  N/A............         252,712      18,448,364
----------------------------------------------------------------------------------------------------------------

---------------------------------------------------------------------------
    \3\ The dollar equivalent cost is derived from the 2018
Association of American Railroads publication titled Railroad Facts
(Employment and Annual Wages by Class) using the appropriate
employee group to calculate the average hourly wage rate that
includes 75 percent overhead charges.
---------------------------------------------------------------------------
    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: 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 Ms. Hodan Wells,
Information Clearance Officer, Federal Railroad Administration, at 202-
493-0440, or Ms. Kimberly Toone, Records Management Officer, Federal
Railroad Administration, at 202-493-6139.
    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Ms. Hodan
Wells 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 Ms. Wells at [email protected], or to Ms.
Toone at [email protected].
    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 will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
[[Page 72547]]
    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 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 proposed rule 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 proposed rule is not a major Federal 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.
See 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 proposed rule that might trigger the need for a
more detailed environmental review. As a result, FRA finds that this
proposed rule 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. FRA has
determined that this final rule has no federalism implications, other
than the possible preemption of state laws under 49 U.S.C. 20106.
Therefore, the consultation and funding requirements of Executive Order
13132 do not apply, and preparation of a federalism summary impact
statement for the 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 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 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) in any one 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 proposed rule would not result in such an expenditure, 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.'' 66
FR 28355 (May 22, 2001). FRA evaluated this proposed rule in accordance
with Executive Order 13211 and determined that this regulatory action
is not a ``significant energy action'' within the meaning of the
Executive Order.
    Executive Order 13783, ``Promoting Energy Independence and Economic
Growth,'' requires Federal agencies to review regulations to determine
whether they potentially burden the development or use of domestically
produced energy resources, with particular attention to oil, natural
gas, coal, and nuclear energy resources. See 82 FR 16093 (March 31,
2017). FRA determined this proposed rule would not burden the
development or use of domestically produced energy resources.
H. Privacy Act Statement
    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, to www.regulations.gov, as described in the
system of records notice, DOT/ALL-14 FDMS, accessible through
www.dot.gov/privacy. To facilitate comment tracking and response, we
encourage commenters to provide their name, or the name of their
organization; however, submission of names is completely optional.
Whether or not commenters identify themselves, all timely comments will
be fully considered. If you wish to provide comments containing
proprietary or confidential information, please contact the agency for
alternate submission instructions.
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]
0
1. The authority citation for 49 CFR 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
1.89.
Subpart A--General
0
2. Amend Sec.  213.1 by revising paragraph (b) to read as follows:
Sec.  213.1  Scope of part.
* * * * *
    (b) Subparts A through F apply to track Classes 1 through 5.
Subpart G and 213.2, 213.3, 213.15, and 213.240 apply to track over
which trains are operated at speeds in excess of those permitted over
Class 5 track.
0
3. Amend Sec.  213.5 by revising paragraph (a)(3) to read as follows:
[[Page 72548]]
Sec.  213.5  Responsibility for compliance.
    (a) * * *
    (3) Operate under authority of a person designated under Sec.
213.7(a), subject to conditions set forth in this part. If the
operation is on continuous welded rail (CWR) track, the person under
whose authority operations are conducted must also be designated under
Sec.  213.7(c).
* * * * *
0
4. Amend Sec.  213.7 by revising paragraphs (a)(1)(i) and (ii), (a)(3),
(b)(3), (c)(4), and (e) and adding paragraph (f) to read as follows:
Sec.  213.7  Designation of qualified persons to supervise certain
renewals and inspect track.
    (a) * * *
    (1) * * *
    (i) 1 year of experience in railroad track maintenance under
traffic conditions; or
    (ii) A combination of experience in track maintenance and training
from a course in track maintenance or from a college level educational
program related to track maintenance.
* * * * *
    (3) Authorization from the track owner to prescribe remedial
actions to correct or safely compensate for deviations from the
requirements of this part.
    (b) * * *
    (3) Authorization from the track owner to prescribe remedial
actions to correct or safely compensate for deviations from the
requirements of this part, pending review by a qualified person
designated under paragraph (a) of this section.
    (c) * * *
    (4) Authorization from the track owner to prescribe remedial
actions to correct or safely compensate from deviation from the
requirements in these procedures and successfully completed a recorded
examination on those procedures as part of the qualification process.
* * * * *
    (e) With respect to designations under paragraph (a) through (d) of
this section, each track owner shall maintain records of--
    (1) Each designation in effect;
    (2) The date each designation was made; and
    (3) The basis for each designation, including the method used to
determine that the designated person is qualified.
    (f) Each track owner shall keep designation records required under
paragraph (e) of this section readily available for inspection or
copying by the Federal Railroad Administration during regular business
hours, following reasonable notice.
0
5. Amend Sec.  213.9 by revising paragraph (b) to read as follows:
Sec.  213.9  Classes of track: operating speed limits.
* * * * *
    (b) If a segment of track does not meet all of the requirements of
its intended class, it is reclassified to the next lowest class of
track for which it does meet all of the requirements of this part.
However, if the segment of track does not at least meet the
requirements of Class 1 track, operations may continue at Class 1
speeds for a period of not more than 30 days without bringing the track
into compliance, under the authority of a person designated under Sec.
213.7(a), after that person determines that operations may safely
continue and subject to any limiting conditions specified by such
person.
0
6. Revise Sec.  213.11 to read as follows:
Sec.  213.11  Restoration or renewal of track under traffic conditions.
    If during a period of restoration or renewal, track is under
traffic conditions and does not meet all of the requirements prescribed
in this part, the work on the track shall be under the continuous
supervision of a person designated under Sec.  213.7(a), and (c) as
applicable, and subject to any limiting conditions specified by such
person. The operating speed cannot be more than the maximum allowable
speed under Sec.  213.9 for the class of track concerned. The term
``continuous supervision'' as used in this section means the physical
presence of that person at the job site. However, since the work may be
performed over a large area, it is not necessary that each phase of the
work be done under the visual supervision of that person.
Subpart D--Track Structure
0
7. Amend Sec.  213.113 by revising the second sentence of paragraph (b)
introductory text to read as follows:
Sec.  213.113  Defective rails.
* * * * *
    (b) * * * Except as provided in Sec.  213.240, the track owner must
verify the indication within four hours, unless the track owner has an
indication of the existence of a defect that requires 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--
* * * * *
0
8. Amend Sec.  213.137 by revising paragraph (a) and adding paragraph
(e), to read as follows:
Sec.  213.137  Frogs.
    (a) Except as provided in paragraph (e) of this section, the
flangeway depth measured from a plane across the wheel-bearing area of
a frog on Class 1 track shall not be less than 1\3/8\ inches, or less
than 1\1/2\ inches on Classes 2 through 5 track.
* * * * *
    (e) The flange depth requirements in paragraph (a) do not apply to
a frog designed as a flange-bearing frog (FBF) used in a crossing
diamond in Classes 2 through 5 track, provided that:
    (1) The crossing angle is greater than 20 degrees unless movable
guard rails are used;
    (2) The track owner documents the location, crossing angle,
tonnage, speed, direction, and type of traffic for each FBF used under
this paragraph (e), and makes this information available to FRA upon
request during regular business hours following reasonable notice; and
    (3) Maintenance manuals are prepared and made available to all
personnel who are responsible for inspecting and repairing each FBF
used under this paragraph (e). Each person conducting inspections of or
repairing such an FBF must be properly trained.
0
9. Revise Sec.  213.143 to read as follows:
Sec.  213.143  Frog guard rails and guard faces; gage.
    The guard check and guard face gages in frogs shall be within the
limits prescribed in the following table--
[[Page 72549]]
----------------------------------------------------------------------------------------------------------------
                                                                    Guard check gage         Guard face gage
                                                               -------------------------------------------------
                                                                  The distance between
                                                                the gage line of a frog
                                                                 to the guard line \1\     The distance between
                        Class of track                            of its guard rail or       guard lines,\1\
                                                                guarding face, measured    measured across the
                                                                  across the track at     track at right angles
                                                                  right angles to the      to the gage line,\2\
                                                                 gage line,\2\ may not    may not be more than--
                                                                     be less than--
----------------------------------------------------------------------------------------------------------------
Class 1 track.................................................               4'6\1/8\''               4'5\1/4\''
Class 2 track.................................................               4'6\1/4\''               4'5\1/8\''
Class 3 and 4 track...........................................               4'6\3/8\''               4'5\1/8\''
Class 5 track.................................................           \3\ 4'6\1/2\''                    4'5''
----------------------------------------------------------------------------------------------------------------
\1\ A line along that side of the flangeway which is nearer to the center of the track and at the same elevation
  as the gage line.
\2\ A line five-eighths of an inch below the top of the center line of the head of the running rail, or
  corresponding location of the tread portion of the track structure.
\3\ For any heavy-point frog (HPF) on class 5 track, the guard check gage may be less than 4'6\1/2\'' but not be
  less than 4'6\3/8\'', provided that:
(a) Each track owner maintains a record of the location and description of each turnout containing an HPF, and
  makes this information available to FRA upon request during regular business hours following reasonable
  notice;
(b) Each HPF and guard rails on both rails through the turnout are equipped with at least three serviceable
  through-gage plates with elastic rail fasteners and guard rail braces that permit adjustment of the guard
  check gage without removing spikes or other fasteners from the crossties;
(c) Each track owner provides all of its employees who are designated under Sec.   213.7 to inspect track or
  supervise restoration and renewal of track, or both, in areas that include turnouts with HPFs, with the proper
  maintenance manuals, instructions, and training; and
(d) Each HPF bears an identifying mark applied by either the track owner, railroad, or the frog manufacturer
  that identifies the frog as an HPF. The identifying mark to be applied or used shall be specified in the
  instructions to employees described in paragraph (d)(3) of this footnote.
Subpart F--Inspection
0
10. Amend Sec.  213.233 by
0
a. Revising the section heading and paragraph (b);
0
b. Revising the first row of the table in paragraph (c) and adding
footnotes 1 and 2 to the table;
0
c. Revising paragraph (d).
    The revisions and addition to read as follows.
Sec.  213.233   Visual track inspections.
* * * * *
    (b) Each inspection shall be made on foot or by traversing the
track in a vehicle at a speed that allows the person making the
inspection to visually inspect the track structure for compliance with
this part. However, mechanical, electrical, and other track inspection
devices may be used to supplement visual inspection. If a vehicle is
used for visual inspection, the speed of the vehicle may not be more
than 5 m.p.h. when traversing track crossings and turnouts; otherwise,
the inspection vehicle speed shall be at the sole discretion of the
inspector, based on track conditions and inspection requirements. When
traversing the track in a vehicle, the inspection will be subject to
the following conditions--
    (1) One inspector in a vehicle may inspect up to two tracks at one
time provided that the inspector's visibility remains unobstructed by
any cause and that the second track is not centered more than 30 feet
from the track the inspector traverses;
    (2) Two inspectors in one vehicle may inspect up to four tracks at
a time provided that the inspectors' visibility remains unobstructed by
any cause and that each track being inspected is centered within 39
feet from the track the inspectors traverse;
    (3) Each main track must be traversed by the vehicle or inspected
on foot at least once every two weeks, and each siding must be
traversed by the vehicle or inspected on foot at least once every
month; and
    (4) Track inspection records shall indicate which track(s) are
traversed by the vehicle or inspected on foot as outlined in paragraph
(b)(3) of this section.
    (c) * * *
----------------------------------------------------------------------------------------------------------------
             Class of track                      Type of track                     Required frequency
----------------------------------------------------------------------------------------------------------------
Excepted track, and Class 1, 2, and 3     Main track and sidings.....  Weekly \1\ with at least 3 calendar days'
 track.                                                                 interval between inspections, or before
                                                                        use, if the track is used less than once
                                                                        a week, or twice weekly with at least 1
                                                                        calendar day interval between
                                                                        inspections, if the track carries
                                                                        passenger trains \2\ or more than 10
                                                                        million gross tons of traffic during the
                                                                        preceding calendar year.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ An inspection week is defined as a seven (7) day period beginning on Sunday and ending on Saturday.
\2\ ``Twice weekly'' inspection requirement for track carrying regularly scheduled passenger trains does not
  apply where passengers train service consists solely of tourist, scenic, historic, or excursion operations as
  defined in 49 CFR 238.5 and the following conditions are met for an inspection week: (1) No passenger service
  is operated during the inspection week, or (2) if passenger service is operated during the inspection week:
  (i) The passenger service is operated only on a weekend or a 3-day extended weekend (weekend plus a contiguous
  Monday or Friday), and (ii) an inspection is conducted no more than 1 calendar day before a weekend or 3-day
  extended weekend on which passenger service is to be operated.
    (d) If the Sec.  213.7 qualified person making the inspection finds
a deviation from the requirements of this part, the inspector shall
immediately initiate remedial action. Any subsequent movements to
facilitate repairs on track that is out of service must be authorized
by a Sec.  213.7 qualified person.
* * * * *
0
11. Add Sec.  213.240 to read as follows:
Sec.  213.240   Continuous Rail Testing
    (a) Track owners may elect to use continuous rail testing to
satisfy the requirements for conducting internal rail inspections under
Sec.  213.237, or Sec.  213.339 where applicable. When a track owner
utilizes the continuous rail test inspection process under the
requirements of this section, the track owner is exempt from the
requirements of Sec.  213.113(b); all other requirements of Sec.
213.113 apply.
    (b) Track owners shall adopt the necessary procedures for
conducting continuous testing. At a minimum, the procedures must
conform to the requirements of this section and address:
    (1) How test data will be transmitted and analyzed;
[[Page 72550]]
    (2) How suspect locations will be identified for field
verification;
    (3) How suspect locations will be categorized and prioritized
according to their potential severity;
    (4) How suspect locations will be field-verified; and
    (5) How suspect locations will be designated following field
verification.
    (c) The track owner must designate and record the type of rail test
(continuous or stop-and-verify) to be conducted prior to commencing the
test over a track segment and make those records available to FRA upon
request during regular business hours following reasonable notice. If
the type of rail test changes following commencement of the test, the
change must be documented and include the time the test was started and
when it was changed, the milepost where the test started and where it
was changed, and the reason for the change. If the track owner intends
to conduct a continuous test, at least 10 days prior to commencement of
the test the track owner must designate and record whether the test is
being conducted to satisfy the requirements for an internal rail
inspection under Sec.  213.237, or Sec.  213.339 if applicable. This
documentation must be provided to FRA upon request during regular
business hours follow reasonable notice.
    (d)(1) Continuous rail test inspection vehicle operators must be
qualified under Sec.  213.238;
    (2) Internal rail inspection data collected during continuous rail
tests must be reviewed and interpreted by a person qualified to
interpret the equipment responses; and
    (3) All suspect locations must be field-verified by a person
qualified under Sec.  213.238.
    (e) At a minimum, the continuous rail test process must produce a
report containing a systematic listing of all suspected locations that
may contain any of the defects listed in the table in Sec.  213.113(c),
identified so that a person qualified under Sec.  213.238 can
accurately locate and field-verify each suspected defect.
    (1) Subject to the requirements of paragraphs (c)(2) and (3) of
this section, if the continuous rail test inspection vehicle indicates
a suspect location, field verification must be conducted within 72
hours of the completion of the test run, or within 84 hours of the
detection of the suspect location, whichever is earlier.
    (2) If the continuous rail test inspection vehicle indicates a
suspect location containing a suspected defect that, if verified,
requires remedial action A, A2, or B identified in the table contained
in Sec.  213.113(c), the track owner must field-verify the suspect
location no more than 24 hours after the completion of the test run, or
36 hours from detection of the suspect location, whichever is earlier.
    (3) If the continuous rail test inspection vehicle indicates a
broken rail with rail separation, the track owner must have procedures
to ensure that adequate protection is immediately implemented.
    (4) A suspect location is not considered a defect under Sec.
213.113(c) until it has been field-verified by a person qualified under
Sec.  213.238. After the suspect location is field-verified and
determined to be a defect, the track owner must immediately perform all
required remedial actions prescribed in Sec.  213.113(a).
    (5) Any suspected location not field-verified within the time
required under paragraphs (e)(1) and (2) of this section must be
protected by applying the most restrictive remedial action under Sec.
213.113(c) for the suspected type and size of the suspected defect. The
remedial action must be applied over a sufficient segment of track to
assure coverage of the suspected defect location until field-verified.
    (f) Each suspect location must be recorded with repeatable accuracy
that allows for the location to be accurately located for subsequent
verification and, as necessary, remedial action.
    (g) Within 45 days following the end of each calendar year, each
track owner utilizing continuous rail testing must provide the FRA
Associate Administrator for Railroad Safety/Chief Safety Officer with
an annual report, in a reasonably usable format, or its native
electronic format, containing at least the following information for
each track segment requiring internal rail inspection under Sec.
213.237, or Sec.  213.339 if applicable:
    (1) The track owner's name;
    (2) The railroad division and subdivision;
    (3) The segment identifier, milepost limits, and length of each
segment;
    (4) The track number;
    (5) The class of track;
    (6) The annual million gross tons over the track;
    (7) The total number of internal rail tests conducted over each
track;
    (8) The type of internal rail test conducted over each segment,
either continuous rail test or stop-and-verify;
    (9) The total number of defects identified over each track segment;
and
    (10) The total number of service failures on each track segment.
0
12. Amend Sec.  213.241 by revising paragraphs (b), (f), and (g), and
adding paragraphs (h) through (j) to read as follows:
Sec.  213.241   Inspection records.
* * * * *
    (b) Each record of an inspection under Sec. Sec.  213.4, 213.119,
213.137, 213.233, and 213.235 shall be prepared on the day the
inspection is made and signed or otherwise certified by the person
making the inspection. Records shall specify the author of record, the
type of track inspected, date and location of inspection, location and
nature of any deviation from the requirements of this part, and the
remedial action taken by the person making the inspection. The track
owner shall designate the location(s) where each original record shall
be maintained for at least one year after the inspection covered by the
record. The track owner shall also designate one location, within 100
miles of each state in which it conducts operations, where copies of
records that apply to those operations are maintained or can be viewed
following 10 days' notice by the Federal Railroad Administration.
* * * * *
    (f) Records of continuous rail testing under Sec.  213.240 shall--
    (1) Include all information required under Sec.  213.240(e);
    (2) State whether the test is being conducted to satisfy the
requirements for an internal rail inspection under Sec.  213.237;
    (3) List the date(s) and time(s) of the continuous rail test data
collection, including the date and time of the start and end of the
test run, and the date and time each suspect location was identified
and field-verified;
    (4) Include the determination made after field verification of each
suspect location, including the:
    (i) Location and type of defect found;
    (ii) Size of defect; and
    (iii) Initial remedial action taken, if required, and the date
thereof; and
    (5) Be retained for at least two years after the inspection and for
at least one year after initial remedial action is taken, whichever is
later.
    (g) Track owners that elect to utilize continuous rail testing
under Sec.  213.240 shall maintain records of all continuous rail
testing operations sufficient for monitoring and determining compliance
with all applicable regulations and shall make those records available
to FRA during regular business hours following reasonable notice.
    (h) Track inspection records shall be kept available to persons who
performed the inspections and to persons performing subsequent
inspections of the track segment.
[[Page 72551]]
    (i) Each track owner required to keep inspection records under this
section shall make those records available for inspection and copying
by FRA upon request during regular business hours following reasonable
notice.
    (j) For purposes of complying with the requirements of this
section, a track owner may create, retain, transmit, store, and
retrieve records by electronic means provided that--
    (1) The system used to generate the electronic record meets all
requirements and contains the information required under this subpart;
    (2) The track owner monitors its electronic records database to
ensure record accuracy;
    (3) The electronic system is designed to uniquely identify the
author of the record. No two persons shall have the same electronic
identity;
    (4) The electronic system ensures that each record cannot be
modified in any way, or replaced, once the record is completed;
    (5) The electronic storage of each record shall be initiated by the
person making the inspection within 72 hours following the completion
of that inspection; and
    (6) 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.
Subpart G--Train Operations at Track Classes 6 and Higher
0
13. Amend Sec.  213.305 by revising paragraph (a)(3), paragraph (b)(3),
(c)(4), and (e), and adding paragraph (f) to read as follows:
Sec.  213.305  Designation of qualified individuals; general
qualifications.
* * * * *
    (a) * * *
    (3) Be authorized by the track owner to prescribe remedial actions
to correct or safely compensate for deviations from the requirements of
this subpart and successful completion of a recorded examination on
this subpart as part of the qualification process.
    (b) * * *
    (3) Be authorized by the track owner to prescribe remedial actions
to correct or safely compensate for deviations from the requirements in
this subpart and successful completion of a recorded examination on
this subpart as part of the qualification process.
    (c) * * *
    (4) Authorization from the track owner to prescribe remedial
actions to correct or safely compensate for deviations from the
requirements in those procedures and successful completion of a
recorded examination on those procedures as part of the qualification
process. The recorded examination may be written, or it may be a
computer file with the results of an interactive training course.
* * * * *
    (e) With respect to designations under paragraphs (a), (b), (c) and
(d) of this section, each track owner shall maintain records of:
    (1) Each designation in effect;
    (2) The date each designation was made; and
    (3) The basis for each designation, including but not limited to:
    (i) The exact nature of any training courses attended and the dates
thereof; and
    (ii) The manner in which the track owner has determined a
successful completion of that training course, including test scores or
other qualifying results.
    (f) Each track owner shall keep these designation records readily
available for inspection or copying by the Federal Railroad
Administration during regular business hours, following reasonable
notice.
0
14. Amend Sec.  213.365 by revising the section heading and paragraphs
(b) through (d) to read as follow:
Sec.  213.365   Visual track inspections.
* * * * *
    (b) Each inspection shall be made on foot or by traversing the
track in a vehicle at a speed that allows the person making the
inspection to visually inspect the track structure for compliance with
this part. However, mechanical, electrical, and other track inspection
devices may be used to supplement visual inspection. If a vehicle is
used for visual inspection, the speed of the vehicle may not be more
than 5 m.p.h. when traversing track crossings and turnouts; otherwise,
the inspection vehicle speed shall be at the sole discretion of the
inspector, based on track conditions and inspection requirements. When
traversing the track in a vehicle, the inspection will be subject to
the following conditions--
    (1) One inspector in a vehicle may inspect up to two tracks at one
time provided that the inspector's visibility remains unobstructed by
any cause and that the second track is not centered more than 30 feet
from the track upon which the inspector traverses;
    (2) Two inspectors in one vehicle may inspect up to four tracks at
a time provided that the inspectors' visibility remains unobstructed by
any cause and that each track being inspected is centered within 39
feet from the track upon which the inspectors traverse;
    (3) Each main track must be traversed by a vehicle or inspected on
foot at least once every two weeks, and each siding must be traversed
by a vehicle or inspected on foot at least once every month; and
    (4) Track inspection records shall indicate which track(s) are
traversed by the vehicle or inspected on foot as outlined in paragraph
(b)(3) of this section.
    (c) Each visual track inspection shall be made in accordance with
the following schedule--
------------------------------------------------------------------------
          Class of track                     Required frequency
------------------------------------------------------------------------
6, 7, and 8......................  Twice weekly \1\ with at least 2
                                    calendar days' interval between
                                    inspections.
9................................  Three times per week.
------------------------------------------------------------------------
\1\ An inspection week is defined as a seven (7) day period beginning on
  Sunday and ending on Saturday.
    (d) If the Sec.  213.305 qualified person making the inspection
finds a deviation from the requirements of this part, the person shall
immediately initiate remedial action. Any subsequent movements to
facilitate repairs on track that is out of service must be authorized
by a Sec.  213.305 qualified person.
* * * * *
0
15. Amend Sec.  213.369 by revising paragraphs (b) and (d) through (f),
and adding paragraphs (g) through (i) to read as follows:
Sec.  213.369  Inspection records.
* * * * *
    (b) Except as provided in paragraph (e) of this section, each
record of an inspection under Sec.  213.365 shall be prepared on the
day the inspection is made and signed or otherwise certified by the
person making the inspection. Records shall specify the author of
record, the type of track inspected, date of inspection, location of
inspection, nature of any deviation from the requirements of this part,
and the remedial action taken by the person making the inspection. The
track owner shall designate the location(s) where each original record
shall be maintained for at least one year after the inspection covered
by the record. The track owner shall also designate one location,
within 100 miles of each state in which it conducts operations, where
copies of records that apply to those operations are maintained or can
be viewed following 10 days' notice by the Federal Railroad
Administration.
* * * * *
    (d) Records of continuous rail testing under Sec.  213.240 shall--
    (1) Include all information required under Sec.  213.240(e);
[[Page 72552]]
    (2) State whether the test is being conducted to satisfy the
requirements for an internal rail inspection under Sec.  213.339;
    (3) List the date(s) and time(s) of the continuous rail test data
collection, including the date and time of the start and end of the
test run, and the date and time each suspect location was identified
and field-verified;
    (4) Include the determination made after field verification of each
suspect location, including the:
    (i) Location and type of defect found;
    (ii) Size of defect; and
    (iii) Initial remedial action taken, if required, and the date
thereof; and
    (5) Be retained for at least two years after the inspection and for
at least one year after initial remedial action is taken, whichever is
later.
    (e) Track owners that elect to utilize continuous rail testing
under Sec.  213.240 shall maintain records of all continuous rail
testing operations sufficient for monitoring and determining compliance
with all applicable regulations and shall make those records available
to FRA during regular business hours following reasonable notice.
    (f) Track inspection records shall be kept available to persons who
perform the inspections and to persons performing subsequent
inspections.
    (g) Each track owner required to keep inspection records under this
section shall make those records available for inspection and copying
by the Federal Railroad Administration upon request during regular
business hours following reasonable notice.
    (h) For purposes of compliance with the requirements of this
section, a track owner may create, retain, transmit, store, and
retrieve records by electronic means provided that--
    (1) The system used to generate the electronic record meets all
requirements and contains the information required under this subpart;
    (2) The track owner monitors its electronic records database to
ensure record accuracy;
    (3) The electronic system be designed to uniquely identify the
author of the record. No two persons shall have the same electronic
identity;
    (4) The electronic system ensures that each record cannot be
modified in any way, or replaced, once the record is completed;
    (5) The electronic storage of each record shall be initiated by the
person making the inspection within 72 hours following the completion
of that inspection; and
    (6) 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.
    (i) Each vehicle/track interaction safety record required under
Sec.  213.333(g) and (m) shall be made available for inspection and
copying by the FRA at the locations specified in paragraph (b) of this
section.
    Issued in Washington, DC.
Ronald L. Batory,
Administrator.
[FR Doc. 2019-27748 Filed 12-30-19; 8:45 am]
 BILLING CODE 4910-06-P