Track Safety Standards; Inspections of Joints in Continuous Welded Rail (CWR), 59677-59693 [06-8599]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 71, Number 196 (Wednesday, October 11, 2006)]
[Rules and Regulations]
[Pages 59677-59693]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-8599]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

[Docket No. FRA-2005-22522]
RIN 2130-AB71


Track Safety Standards; Inspections of Joints in Continuous 
Welded Rail (CWR)

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

ACTION: Final rule.

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SUMMARY: FRA is amending the Federal Track Safety Standards to improve 
the inspection of rail joints in continuous welded rail (CWR). On 
November 2, 2005, FRA published an Interim Final Rule (IFR) addressing 
the inspection of rail joints in CWR. FRA requested comments on the 
provisions of the IFR and stated that a final rule would be issued 
after a review of those comments. This final rule adopts a portion of 
the IFR and makes changes to other portions. This final rule requires 
track owners to develop and implement a procedure for the detailed 
inspection of CWR rail joints and also requires track owners to keep 
records of those inspections.

DATES: This final rule is effective October 31, 2006.

FOR FURTHER INFORMATION CONTACT: Kenneth Rusk, Staff Director, Office 
of Safety, FRA, 1120 Vermont Avenue NW., Washington, DC 20590, 
Telephone: (202) 493-6236; or Sarah Grimmer, Trial Attorney, Office of 
Chief Counsel, FRA, 1120 Vermont Ave NW., Washington, DC 20950, 
Telephone (202) 493-6390.

SUPPLEMENTARY INFORMATION:

Background

I. Continuous Welded Rail (CWR)

A. General
    CWR refers to the way in which rail is joined together to form 
track. In CWR, rails are welded together to form one continuous rail 
that may be several miles long. Although CWR is normally one continuous 
rail, there can be joints \1\ in it for one or more reasons: the need 
for insulated joints that electrically separate track segments for 
signaling purposes, the need to terminate CWR installations at a 
segment of jointed rail, or the need to remove and replace a section of 
defective rail.
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    \1\ Rail joints commonly consist of two joint bars that are 
bolted to the sides of the rail and that contact the rail at the 
bottom surface of the rail head and the top surface of the rail 
base.
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B. Statutory and Regulatory History of CWR
    The Federal Railroad Administration (FRA) issued the first Federal 
Track Safety Standards in 1971. See 36 FR 20336 (October 20, 1971). FRA 
addressed CWR in a rather general manner, stating, in Sec.  213.119, 
that railroads must install CWR at a rail temperature that prevents 
lateral displacement of track or pull-aparts of rail ends and that CWR 
should not be disturbed at rail temperatures higher than the 
installation or adjusted installation temperature.
    In 1982, FRA deleted Sec.  213.119, because FRA believed it was so 
general in nature that it provided little guidance to railroads and it 
was difficult to enforce. See 47 FR 7275 (February 18, 1982) and 47 FR 
39398 (September 7, 1982). FRA stated: ``While the importance of 
controlling thermal stresses within continuous welded rail has long 
been recognized, research has not advanced to the point where specific 
safety requirements can be established.'' 47 FR 7279. FRA explained 
that continuing research might produce reliable data in this area in 
the future.
    The Rail Safety Enforcement and Review Act of 1992 (Public Law 102-
365, September 3, 1992), required that FRA evaluate procedures for 
installing and maintaining CWR. In 1994, Congress required DOT to 
evaluate cold weather installation procedures for CWR (Federal Railroad 
Safety Reauthorization Act (Pub. L. 103-272, July 5, 1994)). In light 
of the evaluation of those procedures, as well as information resulting 
from FRA's own research and development, FRA addressed CWR procedures 
by adding Sec.  213.119 during its 1998 revision of the Track Safety 
Standards. See 63 FR 33992 (June 22, 1998).
    Section 213.119, as added in 1998, requires railroads to develop 
procedures that, at a minimum, provide for the installation, 
adjustment, maintenance, and inspection of CWR, as well as a training 
program and minimal recordkeeping requirements. Section 213.119 does 
not dictate which procedures a railroad must use in its CWR plan. It 
allows each railroad to develop and implement its individual CWR plan 
based on procedures which have proven effective for it over the years. 
Accordingly, procedures can vary from railroad to railroad.
    On August 10, 2005, President Bush signed the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU), (Pub. L. 109-59, August 10, 2005) into law. Section 
9005(a) of SAFETEA-LU amended 49 U.S.C. 20142 by adding a new 
subsection (e) as follows:

    (e) Track Standards.--
    (1) In General.--Within 90 days after the date of enactment of 
this subsection, the Federal Railroad Administration shall--
    (A) require each track owner using continuous welded rail track 
to include procedures (in its procedures filed with the 
Administration pursuant to section 213.119 of title 49, Code of 
Federal Regulations) to improve the identification of cracks in rail 
joint bars;
    (B) instruct Administration track inspectors to obtain copies of 
the most recent continuous welded rail programs of each railroad 
within the inspectors' areas of responsibility and require that 
inspectors use those programs when conducting track inspections; and
    (C) establish a program to review continuous welded rail joint 
bar inspection data from railroads and Administration track 
inspectors periodically.
    (2) Inspection.--Whenever the Administration determines that it 
is necessary or appropriate, the Administration may require 
railroads to increase the frequency of inspection, or improve the 
methods of inspection, of joint bars in continuous welded rail.

    Pursuant to this mandate, on November 2, 2005, FRA revised the 
Track Safety Standards of 49 CFR part 213 by publishing the IFR, 70 FR 
66288, which addresses CWR. FRA requested comments on the IFR and 
provided the Railroad Safety Advisory Committee (RSAC) with an 
opportunity to review the comments on the IFR. On February 22, 2006, 
RSAC established the Track Safety Standards Working Group (working 
group). The working group was given two tasks: (1) Resolution of 
comments on the IFR, and (2) recommendations regarding FRA's role in 
oversight of CWR programs, including analysis of data to determine 
effective management of CWR safety by the railroads. The first task, 
referred to as ``Phase I'' of the CWR review, includes analyzing the 
IFR on inspection of joint bars in CWR territory, reviewing the 
comments to the IFR, and preparing recommendations for the final rule. 
The publication of this final rule concludes ``Phase I'' of RSAC's 
referral to the working group. The working group is currently reviewing 
``Phase II'' of RSAC's referral, which involves an examination of all 
of Sec.  213.119. The working group plans to

[[Page 59678]]

report on its Phase II task to the RSAC at the next full RSAC meeting.

II. Railroad Safety Advisory Committee (RSAC) Overview

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

American Association of Private Railroad Car Owners (AARPCO);
American Association of State Highway & Transportation Officials 
(AASHTO);
American Chemistry Council;
American Petrochemical Institute;
American Public Transportation Association (APTA);
American Short Line and Regional Railroad Association (ASLRRA);
American Train Dispatchers Association (ATDA);
Association of American Railroads (AAR);
Association of Railway Museums (ARM);
Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employees Division (BMWED);
Brotherhood of Railroad Signalmen (BRS);
Chlorine Institute;
Federal Transit Administration (FTA);*
Fertilizer Institute;
High Speed Ground Transportation Association (HSGTA);
Institute of Makers of Explosives;
International Association of Machinists and Aerospace Workers;
International Brotherhood of Electrical Workers (IBEW);
Labor Council for Latin American Advancement (LCLAA)*;
League of Railway Industry Women*;
National Association of Railroad Passengers (NARP);
National Association of Railway Business Women*;
National Conference of Firemen & Oilers;
National Railroad Construction and Maintenance Association;
National Railroad Passenger Corporation (Amtrak);
National Transportation Safety Board (NTSB)*;
Railway Supply Institute (RSI);
Safe Travel America (STA);
Secretaria de Comunicaciones y Transporte*;
Sheet Metal Workers International Association (SMWIA);
Tourist Railway Association Inc.;
Transport Canada*;
Transport Workers Union of America (TWU);
Transportation Communications International Union/BRC (TCIU/BRC);
Transportation Security Administration (TSA); and
United Transportation Union (UTU).
*Indicates associate, non-voting membership.

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

III. RSAC Track Safety Standards Working Group

    After its establishment on February 22, 2006, the working group 
reconvened on April 4-5, 2006, April 26-28, 2006, May 24-25, 2006, and 
July 19-20, 2006 to discuss revisions to the IFR for this final rule. 
The working group considered all the comments and reached consensus on 
recommendations for a final rule. These recommendations were presented 
to the RSAC and on August 11, 2006, the RSAC accepted these 
recommendations. The RSAC voted to forward these recommendations to FRA 
as the basis for a final rule on the inspection of CWR joints.
    FRA has worked closely with the RSAC in developing its 
recommendations and believes that the RSAC has effectively addressed 
inspection of CWR joints. FRA has greatly benefitted from the open, 
informed exchange of information during the meetings. There is a 
general consensus among the railroads, rail labor organizations, state 
safety managers, and FRA concerning the primary principles FRA sets 
forth in this final rule. The working group has also benefitted from 
participation of NTSB staff. FRA believes that the expertise possessed 
by the RSAC representatives enhances the value of the recommendations, 
and FRA has made every effort to incorporate them in this rule.

IV. Train Accidents Involving Joints in CWR

    Since FRA's 1998 revision of the Track Safety Standards, there have 
been a number of train accidents in which the failure of a rail joint 
in CWR was a factor. The NTSB investigated three recent accidents and 
made recommendations to FRA concerning joints in CWR. The NTSB 
recommendations closely parallel the statutory mandate requiring this 
IFR. The three accidents and subsequent NTSB recommendations are 
described below.
A. Derailment of Canadian Pacific Railroad Train 292-16 Near Minot, ND
    On January 18, 2002, Canadian Pacific Railway (CPR) freight train 
292-15 derailed 31 of its 112 cars about \1/2\ mile west of the city 
limits of Minot, North Dakota. Five tank cars carrying anhydrous 
ammonia, a liquefied compressed gas, catastrophically ruptured, and a 
vapor plume covered the derailment site and surrounding area. About 
11,600 people occupied the area affected by the vapor plume. One 
resident was fatally injured, and 60 to 65 residents of the 
neighborhood nearest the derailment site were rescued. As a result of 
the accident, 11 people sustained serious injuries, and 322 people, 
including the two train crew members, sustained major injuries. Damages 
exceeded $2 million, and more than $8 million has been spent in 
environmental remediation.
    In its Railroad Accident Report,\2\ the NTSB determined that the 
probable

[[Page 59679]]

cause of the derailment was ``an ineffective Canadian Pacific Railway 
inspection and maintenance program that did not identify and replace 
cracked joint bars before they completely fractured and led to the 
breaking of the rail at the joint.'' The NTSB found that the 
catastrophic failure of five tank cars and the instantaneous release of 
146,700 gallons of anhydrous ammonia also contributed to the severity 
of the accident.
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    \2\ NTSB Railroad Accident Report: Derailment of Canadian 
Pacific Railway Freight Train 292-16 and Subsequent Release of 
Anhydrous Ammonia Near Minot, North Dakota, January 18, 2002 (NTSB/
RAR-04-01) (March 9, 2004).
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    The NTSB issued several findings in its report. The NTSB found that 
the train derailed because joint bars at the east end of the plug rail 
\3\ fractured (either under the previous train or as the accident train 
passed over the joint), and then, after the joint bars fractured, the 
rail itself also fractured and broke away. The NTSB found that CPR's 
inspection procedures regarding rail joint bars in CWR were inadequate 
to properly inspect and maintain joints within CWR, and those 
inadequate procedures allowed undetected cracking in the joint bars at 
the accident location to grow to a critical size. In a similar vein, 
the NTSB found that FRA's requirements regarding rail joint bars in CWR 
were ineffective, because they did not require on-the-ground visual 
inspections or nondestructive testing adequate to identify cracks 
before they grow to critical size and result in joint bar failure.
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    \3\ A ``plug rail'' describes a short piece of rail inserted 
into a length of CWR to replace a similar piece that was removed 
because of defects or damage.
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    The NTSB also found that FRA's oversight of CPR's CWR program was 
ineffective, because FRA neither reviewed the CWR program nor ensured 
that its track inspectors had copies of the CWR programs to determine 
if the railroad was in compliance with it. As a result of these 
findings, the NTSB made seven safety recommendations, of which the most 
relevant are quoted below.

    Require all railroads with continuous welded rail track to 
include procedures (in the programs that are filed with the Federal 
Railroad Administration) that prescribe on-the-ground visual 
inspections and nondestructive testing techniques for identifying 
cracks in rail joint bars before they grow to critical size. (R-04-
1).
    Establish a program to periodically review continuous welded 
rail joint bar inspection data from railroads and Federal Railroad 
Administration track inspectors and, when determined necessary, 
require railroads to increase the frequency or improve the methods 
of inspection of joint bars in continuous welded rail. (R-04-2).
    Instruct Federal Railroad Administration track inspectors to 
obtain copies of the most recent continuous welded rail programs of 
the railroads that fall within the inspectors' areas of 
responsibility and require that inspectors use those programs when 
conducting track inspections. (R-04-3).
B. Derailment of Amtrak Train No. 58 Near Flora, MS
    On April 6, 2004, National Railroad Passenger Corporation (Amtrak) 
train No. 58 (City of New Orleans) derailed on Canadian National 
Railway Company track near Flora, Mississippi. The entire train 
derailed, including one locomotive, one baggage car, and eight 
passenger cars. The derailment resulted in one fatality, three serious 
injuries, and 43 minor injuries. The equipment costs associated with 
the accident totaled about $7 million.
    In its Railroad Accident Report,\4\ the NTSB determined that the 
probable cause of the accident was ``the failure of the Canadian 
National Railway Company to properly maintain and inspect its track, 
resulting in rail shift and the subsequent derailment of the train, and 
the Federal Railroad Administration's ineffective oversight to ensure 
proper maintenance of the track by the railroad.'' The NTSB made two 
recommendations to FRA, one of which is relevant to the discussion 
here.
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    \4\ Railroad Accident Report: Derailment of Amtrak Train No. 58, 
City of New Orleans, Near Flora, Mississippi, April 6, 2004 (NTSB/
RAR-05/02) (July 26, 2005).

    Emphasize to your track inspectors the importance of enforcing a 
railroad's continuous welded rail program as a part of the Federal 
Track Safety Standards, and verify that inspectors are documenting 
noncompliance with the railroad's program. (R-05-05).
C. Derailment of Union Pacific Train ZLAMN-16 Near Pico Rivera, CA
    On October 16, 2004, Union Pacific (UP) freight train ZLAMN-16 
derailed 3 locomotives and 11 cars near Pico Rivera, California. Small 
amounts of hazardous materials were released from the transported 
cargo. There were no injuries to area residents, the train crew, or the 
emergency response personnel. UP estimated the monetary damage at $2.7 
million.
    In its Railroad Accident Brief,\5\ the NTSB determined ``that the 
probable cause of the derailment was the failure of a pair of insulated 
joint bars due to fatigue cracking. Contributing to the accident was 
the lack of an adequate on-the-ground inspection program for 
identifying cracks in rail joint bars before they grow to critical 
size.''
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    \5\ NTSB Railroad Accident Brief: Accident No. DCA-05-FR-002 
(NTSB/RAB-05/02) (March 9, 2004).
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    The NTSB reiterated two of the recommendations that it had made to 
FRA after the Minot, North Dakota accident: (1) R-04-01 about on-the-
ground visual inspections and nondestructive testing techniques and (2) 
R-04-02 about a program to review joint bar inspection data. The NTSB 
stated further in its brief:

    The CWR track involved in the Pico Rivera accident had all the 
inspections required by the UP and the FRA. In some instances, the 
inspections were done more frequently than required. Nevertheless, 
the inspections failed to detect the developing problems and 
ultimate failure. Additionally, during the 2 days after the last 
inspection, more than 100 trains passed over the insulated joint 
bars without either discovering or reporting a defect. Trains 
traversed the area after the insulated joint bars were completely 
broken, as evidenced by the rail batter in both directions.
    Several indications of an imminent or actual defect were present 
before this accident, which the inspection from a moving vehicle did 
not discover:
     The epoxy bead was missing from the center section of 
the insulated joint bar, indicating vertical movement.
     The joint bars cracked before they completely 
fractured. Part of each crack was visible on the lower outer portion 
of the bar for some time before its failure.
     Rail end batter developed when the joint bars 
completely fractured and trains continued to pass over them in both 
directions.
    These indications developed over time, and a close visual 
inspection from the ground would have likely uncovered the emerging 
problem and allowed corrective action to be taken to avoid the 
accident.

V. FRA's Approach to CWR in This Final Rule

    Earlier versions of Sec.  213.119 did not require track owners to 
include any provisions in their CWR plans related to joints in CWR. 
Track owners were required simply to address joints in CWR in the same 
manner as they addressed joints in conventional jointed rail. See 49 
CFR 213.121. The IFR required track owners to specifically address 
joints in CWR in their respective CWR plans. The IFR focused on the 
track owner maintaining and submitting to FRA a joint inventory which 
would enable the track owner to identify joints due for periodic 
inspections. FRA's gathering of this information would have satisfied 
its obligations under SAFETEA-LU. While this final rule also requires 
track owners to specifically address joints in CWR in their CWR plans, 
it eliminates the joint inventory requirement of the IFR. 
Alternatively, this final rule requires track owners to inspect CWR 
joints at minimum intervals specific to the class of track, annual 
tonnage, and whether the track is used for freight or passenger trains. 
See Sec.  213.119(g)(6)(i). This final

[[Page 59680]]

rule also requires the track owner to submit a Fracture Report when a 
cracked or broken CWR joint is discovered pursuant to a Sec.  213.119, 
Sec.  213.233, or Sec.  213.235 inspection. The Fracture Reports will 
give FRA the information that a joint inventory would have provided. 
See Sec.  213.119(g)(7)(ii).
    To meet the statutory requirement that FRA issue this regulation 
within 90 days of the enactment of SAFETEA-LU, FRA issued the IFR on 
November 2, 2005. This final rule addresses 49 U.S.C. 20142(e)(1)(A) 
and (e)(1)(C) (hereinafter referred to as (e)(1)(A) and (e)(1)(C)). 
Because 49 U.S.C. 20142(e)(1)(B) does not require regulatory action on 
the part of FRA, FRA is not addressing it in this rulemaking.
    Paragraph (e)(1)(A) mandates that FRA require each track owner to 
``include procedures * * * to improve the identification of cracks in 
rail joint bars.'' Congress did not specify how FRA should effect that 
improvement. One way of improving the identification of such cracks is 
through on-foot inspection of joints in CWR. Because most cracks in 
joint bars can be detected by eye before they grow to failure, on-foot 
inspections can be of great value in identifying joint failure. 
Accordingly, FRA is requiring railroads to conduct periodic on-foot 
inspections of CWR joints. See Sec.  213.119(g)(1).
    Rather than limit these on-foot inspections to the identification 
of joint bar cracks, FRA is requiring track owners to also inspect for 
joint conditions that can lead to the development of joint bar cracks. 
Track owners should inspect all safety-critical aspects of joints, 
including any indications of potential failure of the joint itself; any 
indications of potential failure of any components of the joint (e.g., 
rails, bolts, supporting crossties, and track fasteners); and the track 
itself in the vicinity of the joint (including the effectiveness of 
rail anchors or other devices for restraint of longitudinal movement of 
the rail). In this final rule, FRA lists examples of conditions that 
may indicate potential failure. This list is not all-inclusive. There 
are other conditions that could indicate failure, and FRA urges track 
owners to consider all conditions, not just the listed examples.
    In doing this, railroads will address a preemptive solution--i.e., 
preventing cracks from developing--rather than merely reacting to 
cracks after they have developed. It is understood that certain 
conditions involving rail joints and the surrounding CWR contribute to 
the development and propagation of cracks in rail joints. If track 
inspectors inspect for these conditions, detect these conditions, and 
provide information so that railroads can correct these conditions, it 
will reduce the probability of joint failures and subsequent train 
accidents.
    Furthermore, this preventive approach is more appropriate given 
that the development of a crack in a rail joint bar can progress at an 
unpredictable rate. Some cracks might exist for years without causing a 
rupture of the joint, while other cracks can progress rapidly from an 
undetectable size to complete failure. For example, a joint can 
completely fail under a single impact load if the joint is subjected to 
low temperatures and very high-tension forces.
    FRA believes that the time and effort it takes a track inspector to 
perform a complete inspection will be minimal while the benefit of a 
complete inspection will be high. Once a track inspector arrives at a 
location to inspect a joint and begins inspecting that joint, it takes 
little time and effort (beyond the effort to search for and identify 
cracks in joint bars) for him or her to note the condition of the 
entire joint and its surroundings. There are both safety and management 
benefits to a complete inspection. The safety benefit is obvious in 
that it prevents derailments. As for management benefits, track owners 
will save money and time, because it is easier and more cost effective 
to repair incipient joint conditions than actual joint cracks. For 
example, it is more economical to replace joint bolts or to reset rail 
anchors (i.e., potential failure conditions) than it is to replace a 
joint bar after it has developed a crack.
    FRA realizes that inspections at a frequency that could detect 
incipient cracks prior to the possibility of failure in every case are 
not feasible given the current levels of railroad staffing and railroad 
traffic, and in light of the impediments to train operations that would 
result from restrictions required to provide for the safety and 
mobility of inspection personnel. Proper preparation and maintenance of 
joints, however, together with appropriate joint inspection 
instructions, can reduce the frequency of crack formation and also 
prevent rapid propagation in most cases--making a sound program of 
inspection both feasible and more cost effective.
    Paragraph (e)(1)(C) requires that FRA ``establish a program to 
[periodically] review continuous welded rail joint bar inspection 
data'' from railroads and FRA track inspectors. Clearly, FRA can gather 
and review the joint bar inspection data from its own inspectors' 
inspections. In order for FRA to review railroad CWR joint bar 
inspection data, however, track owners must gather that data and make 
it available to FRA for review. Accordingly, this rule now requires 
track owners to compile a Fracture Report and submit it to FRA. See 
Sec.  213.119(g)(7)(ii). As discussed in more detail below, a Fracture 
Report is a record which the track owner must prepare whenever a 
cracked or broken CWR joint is discovered pursuant to a Sec.  213.119, 
Sec.  213.233, or Sec.  213.235 inspection.
    There is not yet an established, efficient method for detecting 
cracks in joint bars by traditional means of automated non-destructive 
testing (NDT). FRA believes that such a system might be developed, and 
that a requirement for effective joint bar inspection by either visual 
or other effective means can provide an incentive for the railroad 
industry to develop such a system. FRA is aware that some railroads do 
employ portable, hand-held equipment to conduct NDT of joint bars. The 
use of NDT will be discussed further in the section-by-section analysis 
of Sec.  213.119(g)(8).
    NDT technology, in addition to careful visual inspection, could be 
used where judged effective. FRA notes, however, that there is 
insufficient engineering data to establish the effectiveness of NDT 
techniques as applied to joint bars in the service environment. 
Further, as illustrated by the examination of NDT technology and 
services by the joint FRA/industry Rail Integrity Task Force,\6\ 
operator qualification and quality control remain areas of concern. 
Accordingly, FRA focuses the ``benchmark'' inspection requirements of 
this IFR on visual inspection by a qualified track inspector.
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    \6\ The Rail Integrity Task Force is a joint FRA/industry 
working group. It was convened in April 2002 to identify ``best 
practices'' within the railroad industry regarding the inspection, 
maintenance, and replacement of rail. The goal of the task force is 
to ``reduce rail-related accidents and casualties resulting from 
derailments caused by broken rail.''
    The task force is comprised of subject-matter experts from the 
major heavy-haul railroads, the AAR, FRA's Office of Safety 
Assurance and Compliance, FRA's Office of Railroad Development, as 
well as technical support from the Volpe National Transportation 
Systems Center. The task force has also requested and received input 
from all of the service providers in the field of nondestructive 
testing of rail.
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VI. Response to Public Comments

    FRA received seventeen comments in response to the IFR. The 
comments addressed concerns over a variety of issues, including: 
inspection frequencies, the economic analysis of the regulation, the 
training of track inspectors, the availability of CWR plans, the joint 
inventory requirement of

[[Page 59681]]

the IFR, the recordkeeping requirements, and other various issues. The 
working group addressed each comment in its meetings. A more detailed 
discussion of the public comments will be found in the section-by-
section analysis.
A. Inspection Frequency
    The IFR required a track owner's CWR plan to specify the timing of 
joint inspections based on the configuration and condition of the 
particular joint. The IFR provided minimum inspection intervals of 
every 190 days for track classes 4 and higher and every 370 days for 
class 3 track and class 2 track on which passenger trains operate. 
Public comments on the required inspection frequency were numerous and 
varied. For example, BMWED desired much more frequent inspections 
(i.e., monthly), while other commenters suggested risk-based (variable) 
inspection intervals taking into account the presence of passenger 
trains, hazardous materials or the proximity of railroad operations to 
population centers. Suggestions to increase inspection frequency 
dominated comments addressing inspection frequency. Further, railroad 
commenters were almost unanimously opposed to the inventory 
requirements imposed by the IFR, and some implied that the inventory 
was far more burdensome than increased inspection frequency would be.
    Several Senators urged FRA to increase the required inspection 
frequencies. In a filing supported by three members of the California 
congressional delegation and several local officials, the California 
Public Utilities Commission recommended that FRA require more frequent 
inspections and take into consideration more factors in determining 
inspection intervals, such as population density and risk associated 
with hazardous materials. FRA and the RSAC carefully considered these 
comments. FRA also took into account the fact that railroad CWR 
procedures filed in response to the IFR failed to address circumstances 
that might warrant more frequent inspection.
    The FRA decided upon an inspection frequency in lieu of an 
inventory requirement after considering many different approaches. The 
inspection frequency was based upon model results developed by the 
Department of Transportation's Volpe Center (Volpe), the practical 
realities of railroad operations, as well as discussions, negotiations, 
and compromises combining practicality, enforceability, and 
effectiveness. The RSAC working group discussed all of these 
considerations at its meetings.
    Volpe developed several engineering models to estimate the loads 
imposed on a rail joint. As is true of all models, they were 
simplifications of reality designed to give insight into underlying 
facts. The models considered the effects of various joint 
characteristics such as rail section, rail end gap, batter, height 
mismatch and vertical support. Loads were used to infer stresses in the 
joint bar which permitted the conduct of a fatigue analysis to 
determine the tonnage, expressed as million gross tons (MGT), required 
to develop a fatigue crack in the bar. The models were based on an 
assumed rectangular cross section, which, although very different from 
the actual joint bar shape, seemed to give adequate direction when 
later compared to actual experience. Under the assumed baseline joint 
conditions, bar fatigue life was estimated to be greater than 5,000 
MGT.
    Fatigue life is only tangentially related to a reasonable 
inspection interval. Crack growth life after crack initiation is far 
more important. Volpe applied fracture mechanics principles to estimate 
the tonnage required to grow the crack from a barely detectable size to 
the size at which the bar would fracture under the next train. For the 
same baseline joint conditions, the analysis yielded a fatigue crack 
growth life estimate of 13 MGT, using a minimum detectable crack size 
of one-sixteenth of an inch. Smaller initial crack sizes yielded 
dramatically longer fatigue lives, and larger initial crack sizes 
yielded dramatically shorter fatigue lives. Further, the fatigue and 
crack growth lives are extremely sensitive to the conditions of the 
joint. Poor joint conditions result in shorter estimated lifetimes, 
while better conditions increase the expected joint bar life. For each 
case, Volpe fatigue life estimates are conservative, as the analysis 
predicts first percentile life. That is, the fatigue life estimate is 
the tonnage at which one percent of joint population can be expected to 
have formed a crack--a standard engineering approach to estimating 
fatigue life. The Volpe crack growth models also have some conservative 
features. The Volpe model seemed to forecast slightly more failures 
than are being realized in actual railroad service, but FRA will 
compare the model to actual data once fracture reports become 
available.
    These results were considered by the RSAC working group and 
compared to real life experiences. Many railroads already had 
inspection plans for their CWR joints. During the RSAC working group 
meetings, numerous inspection intervals were suggested. Certain parties 
suggested that 40 MGT be used, while others wanted 10 MGT. A consensus 
was reached that 20 MGT would be a reasonable inspection interval. 
Although Volpe's model had suggested 13 MGT, the Volpe representatives 
assured FRA that 20 MGT is an appropriate inspection interval. Given 
the practical realities of conducting the required on-foot visual 
inspections required under the new rule, and FRA's heightened concerns 
about tracks with 40-60 MGT per year, certain trade-offs were made by 
RSAC in recommending the inspection frequency schedule. FRA has adopted 
the RSAC recommendations regarding inspection frequency.
    For freight-only operations, the inspection interval depends on the 
annual tonnage and the FRA track class. The inspection interval is 
approximately once every 20 MGT up to 60 MGT (or three times per year) 
for Class 4 and Class 5 track, with less frequent intervals for Class 3 
track. These intervals are greater than the estimated crack growth 
life; however, they represent a practical baseline and account for the 
likely increased severity of accidents on higher track classes. They 
are also reflective of the vast majority of freight traffic in the U.S. 
as most lines accumulate an average of approximately 60 MGT per year. 
Higher annual tonnage lines generally represent unit train operations 
consisting of coal, for example. Track with higher speeds is subject to 
more frequent inspections, because higher speed accidents are likely on 
the average to be more severe. The inspection intervals provide some 
balance between risk and cost of inspection.
    For track upon which passenger trains operate, a different schedule 
was developed which considers the potentially greater severity, 
especially in terms of loss of life, from possible future passenger 
train accidents. The inspection intervals are again graduated based on 
track class and whether the line experiences more or less than 20 MGT 
per year with more frequent inspections required for higher classes of 
track. If a track owner operates both freight and passenger trains over 
a given segment of track and there are two different possible 
inspection interval requirements, the more frequent inspection interval 
applies.
    FRA also provided relief requested by ASLRRA on behalf of smaller 
railroads, which run occasional passenger service. Pursuant to the 
frequency chart in Sec.  213.119(g)(6)(i), those railroads can run 
passenger trains at the maximum speed authorized for the next lower

[[Page 59682]]

class of track. FRA believes this is safe, because track with freight 
service is inspected at frequencies higher or equal to the inspection 
frequency of the next lower class track with passenger service.
    FRA considered adding further complexity to the required inspection 
frequency, but decided that would not be either necessary or 
productive. It is not necessary because the inspection strategy 
embodied in this final rule should be sufficient to address joint 
integrity issues (conditions that foster development of cracks) and to 
detect cracks before failure in the vast majority of cases. Further 
complexity would not be productive because available information does 
not support development of a useful inspection strategy built on other 
factors. For instance, protecting nearby populations from hazardous 
material accidents is always a desirable objective; however, most 
hazardous materials releases (which are infrequent events) occur along 
the railroads in unpopulated areas or in small rural communities--
thousands of which lie along major rail lines. Hazardous materials 
shipments traverse most rail lines, yet there is no data suggesting 
that the volume of shipments predicts the likelihood of a release in a 
train accident. After discussion of these issues, the RSAC agreed that 
an inspection strategy based on class of track, tonnage, and presence 
or absence of passenger traffic was the best approach. The RSAC also 
developed the Fracture Report process, which may lead to further 
refinement of inspection intervals over time.
B. Economic Analysis
    AAR had extensive comments on the IFR's economic analysis. First, 
AAR stated that the recordkeeping costs were underestimated, and 
stressed that the IFR's proposed inventory requirement would be more 
costly than estimated by FRA. FRA agrees that the cost estimates 
developed in connection with the IFR were based on an excessively 
optimistic assumption regarding the extent of railroads' use of 
electronic technology which would have been necessary to keep inventory 
costs reasonable. As FRA is no longer requiring an inventory, these 
costs will not be analyzed further for the final rule.
    AAR also stated that FRA underestimated the burden imposed upon 
inspectors by underestimating the time per inspection and by 
underestimating the number of joints to be inspected. In response to 
this comment, FRA will use a longer time period for inspection as part 
of a sensitivity analysis; four minutes will be allocated for each 
joint inspection in this analysis and the originally proposed one 
minute per joint inspection in a separate analysis. Although FRA worked 
with the AAR to obtain more accurate data to better estimate the number 
of joints to be inspected and the frequency to which they will be 
inspected, the AAR was not able to provide significantly improved data 
in the time available. In its comments, AAR had estimated the number of 
joints by extrapolating a total number from a six-and-a-half mile 
segment of track. FRA believes its estimates are at least as good as 
AAR's extrapolation from a six-and-a-half mile segment.
C. Joint Inventory Requirement in the IFR
    Commenters such as AAR, Long Island Railroad (LIRR) and Metro-North 
found the joint inventory requirements in the CFR to be extremely 
burdensome. In response to these comments and discussions of the RSAC 
working group, FRA has eliminated the inventory requirement of the IFR. 
The RSAC working group agreed that in lieu of the data supplied by a 
CWR Joint Inventory, the track owner would be required to submit 
Fracture Reports to the FRA twice annually. FRA will analyze the data 
provided in the reports to enhance industry knowledge with regard to 
the factors causing broken joint bars.
D. Training
    FRA received a comment from BMWED suggesting that there should be 
annual re-training of track inspectors on joint bar inspections. FRA 
interprets this comment as pertaining to CWR training in general. As 
FRA did not change the CWR training provision in the IFR, FRA has 
resolved to address training concerns in Phase II of the working 
group's task of reviewing all of Sec.  213.119.
E. Availability of CWR Plans
    FRA received comments that CWR written procedures (designated ``CWR 
plans'' under this final rule) were not made readily available for 
inspectors. FRA has resolved this issue by making all CWR plans it 
receives pursuant to Part 213 available to all FRA and State 
inspectors. However, FRA agrees that greater clarity is desirable. FRA 
will ask the working group to include a more suitable process for 
submission and dissemination of CWR plans in Phase II of its 
activities.
F. Other Comments
    FRA accepted AAR's suggestion to remove the reference to impact 
loads in the final rule. FRA also added an exception to the inspection 
frequency requirements to allow for irregularly scheduled passenger 
trains. See Sec.  213.119(g)(6)(ii). To further address this concern, 
FRA added a definition of ``unscheduled detour operation'' to the list 
of definitions in Sec.  213.119(j). In response to a comment regarding 
irregularly scheduled passenger trains, FRA created an exception for 
tourist and excursion operations in Sec.  213.119(g)(6)(iii). 
Accordingly, FRA added a definition for Tourist, Scenic, Historic, or 
Excursion Operations in Sec.  213.119(j).

VII. Section-by-Section Analysis

Section 213.119
    FRA is revising Sec.  213.119 by requiring track owners to 
incorporate into their CWR plans written procedures on the inspection 
of joints in CWR. This will require most track owners to amend their 
existing CWR plans. Track owners must also create and maintain records 
of these inspections. FRA provides details of these new provisions 
below, which affect Sec.  213.119(g)-(j). Paragraphs (a)-(f) of this 
section are not changed with this final rule.
Paragraph (g)
    In the IFR, this paragraph required track owners to specifically 
address joints in CWR in their respective CWR plans. This final rule 
adopts a number of changes to the IFR's provisions. Principal among 
those changes are the Fracture Report requirement and the increased 
minimum inspection frequencies. Both of these new requirements will be 
discussed in further detail below.
    This paragraph requires each track owner to include in its CWR plan 
provisions for the scheduling and conducting of joint inspections. A 
person who is qualified under Sec.  Sec.  213.7 to perform inspections 
of CWR track should perform the inspections required by this paragraph 
on foot at the joint.
Paragraph (g)(1)
    This paragraph governs periodic inspections of CWR joints. Track 
owners are required to establish procedures for conducting these 
inspections. Upon identifying actual conditions of joint failures 
(i.e., broken or cracked joint bars) or potential conditions of joint 
failure, track owners must initiate the appropriate corrective action 
and keep the appropriate records. See Sec. Sec.  213.119(g)(5) and 
213.119(g)(7). In addition, when a track owner discovers CWR joints 
that are not in compliance with the requirements of Part 213, the track 
owner must take the appropriate

[[Page 59683]]

remedial action required by Part 213. FRA notes that nothing in this 
paragraph interferes with the track owners' continuing obligation to 
conduct track inspections under Sec.  213.233.
    Periodic inspections, as referenced herein, are on-foot inspections 
of CWR joints that track owners must conduct on a regular basis. Track 
owners are required to conduct periodic inspections at the minimum 
intervals specified in paragraph (g)(6). Track owners, of course, are 
free to conduct such inspections more frequently than required.
    The IFR had also included special inspections in this paragraph. As 
a result of working group discussions, FRA removed the discussion of 
special inspections from this paragraph. Although FRA has removed the 
discussion of special inspections from Sec.  213.119(g), FRA intends to 
place it elsewhere in Sec.  213.119. FRA will include the discussion of 
special inspections (e.g., sun kinks, pull aparts, etc.) in the broader 
review of Sec.  213.119, during Phase II of this project.
Paragraph (g)(2)
    This paragraph requires track owners to identify joint bars with 
visible or otherwise detectable cracks and conduct remedial action 
pursuant to Sec.  213.121. The IFR had included cracked joint bars 
under the list of actions items, which this final rule addresses in 
paragraph (g)(3). Although the working group placed the identification 
of cracked joint bars under the list of action items as well, FRA 
decided to address them separately in this final rule. As SAFETEA-LU 
mandates FRA to promulgate regulations to improve the identification of 
cracks in joint bars, FRA is distinguishing between joint bars that are 
already cracked and joint bars that have the potential of cracking in 
the future. When a track owner discovers a cracked joint bar, he must 
take the remedial action specified in Sec.  213.121; however, if he 
discovers a joint bar with actual or potential joint failure, he must 
take the corrective action specified by his CWR plan. Corrective action 
will be further addressed in paragraph (g)(5).
Paragraph (g)(3)
    This paragraph identifies those items relating to joint inspections 
that track owners must address in their CWR plans. FRA notes that these 
items are the minimum that track owners should address. Of course, 
track owners are free to include additional items in their respective 
CWR plans. Track inspectors should identify and record these listed 
items during their inspection of joints because these items are related 
to the integrity of the joint, and thus, to the safety of trains that 
operate over these joints.
    The IFR mentioned these items, but it did not specifically state 
that they were conditions of potential joint failure. FRA notes this 
list is not all-inclusive. There are other conditions that could 
indicate failure, and FRA urges track owners to consider all 
conditions, not just these listed examples.
    Loose, bent, or missing joint bolts. The bolts through the joint 
bars and rail ends are a vital component of the joint. Bolts are meant 
to keep joint bars firmly supported against the joint. If bolts are 
missing, loose, or bent, the bolts will fail to keep the joint bars 
firmly in contact with the rails. The rails are then liable to separate 
when there is cold weather which causes high-tension forces through the 
joint. Bolts in joints with bars that are separated from the web of the 
rail at the bolt holes tend to fail when the bolts bend. When the bolts 
bend beyond their elastic limit, they lose their design tension, and 
they are no longer capable of holding the joint bars firmly against the 
rail. The joint then permits the rails to move in relation to each 
other under passing wheels, causing increased impact loads on the joint 
and battering of the adjoining rail ends. This can potentially lead to 
cracks and eventually fracture of the joint bars or rail ends.
    Rail end batter or mismatch that contributes to instability of the 
joint. Rail end batter refers to the deformation of the running surface 
at the end of the rail. Rail end batter occurs when wheels pass over a 
joint and (1) the rails are pulled apart to the extent that the wheels 
can drop slightly into the gap, or (2) the rail ends are mismatched, or 
both. Rail ends can be mismatched because joint bolts are loose or 
because the rails do not match when installed. Excessive rail end 
batter causes high impact forces on all components of the joint; this 
can cause the joint bar or the rail to rupture. Also, vibrations at a 
battered joint can cause loss of consolidation of ballast at the joint, 
leaving the joint vulnerable to thermal buckling when high compressive 
forces are generated in the rails.
    The IFR included the term ``impact loads'' as another defect to 
which rail end batter or mismatch could contribute. The RSAC working 
group determined that it was redundant to keep the term ``impact 
loads'' in the rule text, as it is understood that these conditions can 
cause extreme impact loads. Since other conditions, such as rail end 
gap, can have the same effect, FRA decided to remove the phrase 
``impact loads'' from the final rule.
    Evidence of excessive longitudinal rail movement in or near the 
joint, including, but not limited to, wide rail gap, defective joint 
bolts, disturbed ballast, surface deviations, gap between tie plates 
and rail, or displaced rail anchors. Longitudinal rail movement is 
evidence that the rails might not be securely anchored, that excessive 
tension forces are developing in the rail when it is cold, or that the 
joint bolts have lost their clamping properties after being stretched 
in bending. As wheels pass over and drop into the gap, there are high 
impact forces on the joint. This can have the same consequences as 
described above for rail end batter. When a joint is not properly 
supported, it will deflect vertically (or swing), creating 
substantially increased stress in the joint bars and rail. Irregular 
surface deviations develop from a vertically displaced joint, which 
leads to increased lateral loading and stress at the joint. These 
tension forces, combined with additional impact loads, have a tendency 
to cause cracks and to cause rupture of joint bars and rail.
Paragraph (g)(4)
    This paragraph requires track owners to include procedures in their 
CWR plans for the inspection of CWR joints that are imbedded in 
highway-rail grade crossings or in other structures that prevent a 
complete inspection of the joint (e.g., pans in fueling facilities, 
scales, passenger walkways at stations that cover the track, etc.). The 
plans must also include procedures for the removal of loose material or 
other temporary material from the joint. FRA is adding this paragraph 
in response to comments by AAR and to subsequent discussions at RSAC 
working group meetings, as the IFR did not mention ``imbedded'' joints.
    Some working group members were concerned that they would be unable 
to inspect these ``imbedded'' joints, which are sometimes not fully 
visible on the sides and bottoms of the joint bars. Railroads did not 
want to be penalized for their inability to see, and therefore inspect, 
these joints. FRA understands that a small percentage of the joints in 
CWR are ``imbedded'' joints. FRA acknowledges that railroad engineering 
personnel have made efforts to remove these imbedded joints where 
possible, and that, nonetheless, some of these joints remain.
    With respect to the procedures for ``imbedded'' joints, FRA does 
not expect that railroads will need to disassemble or remove the track 
structure (e.g., remove pavement or crossing pads) to

[[Page 59684]]

conduct an inspection of CWR joints. However, FRA does expect that 
railroads will make every effort, to the extent practicable, to inspect 
the joints in these structures.
    FRA is aware that CWR joints may sometimes be temporarily buried 
during maintenance (e.g where ballast is distributed in the middle of 
the track and along the track) and therefore unavailable for 
inspection. FRA expects that railroads will take necessary measures to 
conduct inspections of these CWR joints. FRA expects that railroads 
will schedule their maintenance so as to allow for a complete 
inspection of these joints. Where CWR joints are buried (e.g., by 
ballast), FRA expects that railroad maintenance personnel will wait for 
the completion of the track surfacing and dressing of the ballast 
before conducting their joint bar inspections. Alternatively, railroads 
may use hand tools or mechanical means to remove ballast from the sides 
of track joints, so that they can conduct an inspection of those track 
joints.
    Finally, FRA notes that components of the track (such as crossties, 
fasteners, tie plates, etc.) are also not fully visible in highway-rail 
crossings and similar structures. FRA has never specifically exempted 
these items from the inspections required under Part 213. Instead, FRA 
expects that the railroads will inspect these areas to the maximum 
extent possible.
Paragraph (g)(5)
    This paragraph requires track owners to specify in their CWR plans 
the appropriate corrective actions that must be taken when track 
inspectors find conditions of actual or potential joint failure. The 
IFR required track owners to specify in their plans the appropriate 
remedial actions. FRA notes the difference between the terms ``remedial 
actions'' and ``corrective actions.'' Remedial actions are those 
actions which track owners are required to take as a result of 
requirements of Part 213 to address a non-compliant condition. For 
example, if a track owner discovers a cracked joint bar, he must 
replace it. See 49 CFR 213.121. Corrective actions, on the other hand, 
are those actions which track owners specify in their CWR plans to 
address conditions of potential joint failure, including, as 
applicable, repair, restrictions on operations, and additional on-foot 
repair. To ensure clarity, FRA has defined these terms in Sec.  
213.119(j).
    Follow-up inspections, as referenced herein, are joint-specific and 
conducted in response to conditions that a track owner discovers during 
periodic inspections. Track owners will identify in their CWR plans the 
conditions that trigger follow-up inspections. For example, where a 
track owner identifies ``replace bolt or inspect weekly'' as a 
corrective action for a bent bolt, if a track inspector discovers a 
bent bolt during a periodic inspection and does not immediately replace 
it, then the track inspector will have to conduct follow-up inspections 
at that joint.
Paragraph (g)(6)
    This paragraph requires railroad owners to specify the timing of 
periodic inspections. As previously mentioned, commenters criticized 
the IFR's minimum joint inspection frequency. The IFR provided minimum 
inspection intervals of every 190 days for track classes 4 and higher 
and every 370 days for class 3 track and class 2 track on which 
passenger trains operate. To address both public comments and 
discussions during RSAC working group meetings, FRA increased the 
minimum number of required joint inspections. The minimum number of 
required joint inspections are addressed in the table in paragraph 
(g)(6)(i). As previously discussed, the timing periods in this 
paragraph represent the minimum of what is expected. Railroad owners 
are encouraged to implement additional inspection periods as they 
determine necessary.
    The IFR did not allow for any exceptions to the minimum joint 
inspection frequency. Pursuant to RSAC working group recommendations, 
in paragraphs (g)(6)(ii)-(iv), FRA is allowing exceptions to the 
minimum inspection frequencies for unscheduled detours, certain 
passenger trains, and items that are already inspected on a monthly 
basis pursuant to 49 CFR 213.235. Each of these exceptions will be 
discussed in more detail below.
Paragraph (g)(6)(i)
    The table contained in this paragraph provides guidance for the 
minimum required inspection frequency of CWR joints. The working group 
developed this table to specify inspection frequencies for each class 
of track. The table contains two footnotes clarifying the inspection 
frequencies in the table.
    The first footnote provides that where a track owner operates both 
freight and passenger trains over a given segment of track, and there 
are two different possible inspection interval requirements, the more 
frequent inspection interval applies. This footnote was developed by 
the working group to address concerns over track shared by freight and 
passenger trains. It was anticipated that there could be a potential 
conflict with the inspection frequency required for the track if the 
track owner were to follow the chart for both types of trains. By 
requiring the more frequent inspections in situations of conflict, this 
footnote ensures greater safety and protection to track used for mixed 
purposes.
    The second footnote is added in response to concerns over 
sensitivity of extreme regional weather conditions. This concern was 
raised in the working group by industry representatives with regard to 
the difficulty of inspecting CWR joints in northern regions when there 
is a large amount of snow. The working group acknowledged that there 
could be times when it would be extremely difficult for a track owner 
to clear snow and ice from the joint in order for it to be seen for 
inspection. This footnote allows some flexibility for track owners in 
such a situation.
Paragraph (g)(6)(ii)
    This paragraph allows track owners to operate passenger trains 
without lowering the track speed for a limited period of time without 
adhering to the required inspection frequencies for passenger trains 
pursuant to the table in Sec.  213.119(g)(6)(i). This provision 
accommodates for unplanned outages, derailments, accidents, and other 
emergency situations. Track owners are still required to adhere to the 
applicable freight inspection frequencies. This provision is intended 
to provide relief to railroads that operate passenger trains and that 
have a last minute emergency situation. However, if a track owner 
operates passenger trains at the normal track speed for more than 
fourteen days, the track must be inspected at the appropriate passenger 
train levels as detailed in the table at Sec.  213.119(g)(6)(i).
Paragraph (g)(6)(iii)
    As defined in Sec.  213.119(j), tourist, scenic, historic, or 
excursion operations mean railroad operations that carry passengers 
with the conveyance of the passengers to a particular destination not 
being the principal purpose. These types of operations typically run 
less frequently than intercity or commuter passenger trains and occur 
most often on short-line railroads. If a track owner has an operation 
of this type on the track and does not want to take that operation into 
account in determining inspection frequency, the owner must drop the 
track speed one class with regard to that operation. This way, the 
track owner will still be in compliance with the inspection frequency 
mandated by the table in paragraph (g)(6)(i) regardless of the class of 
freight the owner runs on the track. As the first

[[Page 59685]]

footnote to the table in paragraph (g)(6)(i) states, where there are 
two different possible inspection interval requirements, the more 
frequent inspection interval applies.
Paragraph (g)(6)(iv)
    In this paragraph, FRA exempts the following items from the 
periodic inspection frequency intervals: switches, turnouts, track 
crossings, lift rail assemblies or other transition devices on moveable 
bridges. Track owners already inspect these items on a monthly basis 
pursuant to 49 CFR 213.235. Rather than apply the additional periodic 
inspection requirements (i.e, apply the intervals in the table in Sec.  
213.119(g)(6)(i) to switches and turnouts, etc), FRA believes it is 
more appropriate to have track owners conduct their inspections of 
joints at these locations during their monthly 49 CFR 213.235 
inspections.
    With respect to turnouts, FRA has historically understood and 
operated under the assumption that a turnout extends from the point of 
the switch to the heel of the frog. FRA will continue to operate under 
that assumption, and accordingly, all joints in turnouts, switches, 
etc. must be inspected monthly pursuant to 49 CFR 213.235 and records 
of these inspections must be kept in accordance with 49 CFR 213.241. 
The final rule does not require that the data elements listed in Sec.  
213.119(g)(7)(i) appear on the 49 CFR 213.235 inspection record. The 
reason for this is that, with more frequent inspections, the track 
inspector should be better able to manage joint conditions without 
maintaining detailed records.
    All joints that extend beyond the point of a switch or beyond the 
point of the heel of the frog need not be inspected monthly and instead 
can be inspected at the frequency intervals identified in Sec.  
213.119(g)(6)(i). However, track owners are free to include, in their 
monthly 49 CFR 213.235 inspection, these joints that are located in 
track structure that is adjacent to turnouts and switches. If track 
owners choose to do this, they must clearly define the parameters of 
that arrangement in their CWR plan. In other words, the track owner 
should clearly identify the physical limits of the adjacent track 
structure (e.g., insulated joints up until the signal), and they must 
clearly identify the inspection interval for joints in that adjacent 
track (e.g., ``inspect all insulated joints to the signal during the 
monthly 49 CFR 213.235 inspection.'')
    In addition, as long as track owners clearly define the parameters 
in the CWR plans, the track owner need not keep two sets of records 
(i.e., a record from the 49 CFR 213.235 inspection and a record from 
the Sec.  213.119(g)(6)(i) inspection) for inspections of these 
``adjacent'' joints. For example, if the track owner's CWR plan 
indicates that joints in crossovers between turnouts must be inspected 
during the monthly 49 CFR 213.235 inspection, and a railroad track 
inspector inspects the joints in the crossover during the monthly 49 
CFR 213.235 inspection, then it is sufficient for the track owner to 
create and maintain only the 49 CFR 213.235 record.
    FRA believes this option is useful, because it avoids the confusion 
and duplication that might otherwise result. Without this option, 
railroad track inspectors would be unsure what to note in their records 
and which track inspections require which records. In addition, FRA 
notes that it would be burdensome for track inspectors to inspect those 
``adjacent'' joints monthly and make a note of the inspection in the 
monthly 49 CFR 213.235 record and also be required to make an 
additional Sec.  213.119(g)(6)(i) record every couple of months.
Paragraph (g)(7)
    This paragraph requires track owners to keep records specific to 
CWR joint bars. As previously mentioned, the IFR required track owners 
to maintain and submit to FRA a joint inventory. In response to 
comments that this requirement was too burdensome, FRA has eliminated 
the joint inve