Track Safety Standards; Continuous Welded Rail (CWR), 73078-73094 [E8-28438]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 73, Number 231 (Monday, December 1, 2008)]
[Proposed Rules]
[Pages 73078-73094]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28438]



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Part VI





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 213



Track Safety Standards; Continuous Welded Rail (CWR); Proposed Rule

Federal Register / Vol. 73, No. 231 / Monday, December 1, 2008 / 
Proposed Rules

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

[Docket No. FRA-2008-0036]
RIN 2130-AB90


Track Safety Standards; Continuous Welded Rail (CWR)

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing to amend the Federal Track Safety Standards 
to promote the safety of railroad operations over continuous welded 
rail (CWR). In particular, FRA is proposing specific requirements for 
the qualification of persons designated to inspect CWR track, or 
supervise the installation, adjustment, or maintenance of CWR track. 
FRA is also proposing to clarify the procedures associated with the 
submission of CWR plans to FRA by track owners. FRA proposes that these 
plans focus on inspecting CWR for pull-apart prone conditions, and 
focus more specifically on CWR joint installation and maintenance 
procedures. This proposed rule would also make other changes to the 
requirements governing CWR.

DATES: (1) Written comments must be received by January 15, 2009. 
Comments received after that date will be considered to the extent 
possible without incurring additional delay or expense.
    (2) FRA anticipates being able to resolve this rulemaking without a 
public, oral hearing. However if FRA receives a specific request for a 
public, oral hearing prior to December 31, 2008 one will be scheduled 
and FRA will publish a supplemental notice in the Federal Register to 
inform interested parties of the date, time, and location of any such 
hearing.

ADDRESSES: Comments: Comments related to this Docket No. FRA-2008-0036 
may be submitted by any of the following methods:
     Federal eRulemaking Portal: Go to www.Regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington, 
DC 20590-0001.
     Hand Delivery: Docket Management Facility, U.S. Department 
of Transportation, West Building, Ground floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Please note that all comments received will be posted 
without change to www.Regulations.gov, including any personal 
information provided. Please see the discussion under the Privacy Act 
heading in the Supplementary Information section of this document.
    Docket: For access to the docket to read background documents or 
comments received, go to www.Regulations.gov at any time or visit the 
Docket Management Facility, U.S. Department of Transportation, West 
Building, Ground floor, Room W12-140, 1200 New Jersey Avenue, SE., 
Washington, DC between 9 a.m. and 5 p.m. ET, Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Kenneth Rusk, Staff Director, Office 
of Safety, FRA, 1200 New Jersey Avenue, SE., Washington, DC 20590 
(telephone: (202) 493-6236); Daniel Alpert, Trial Attorney, Office of 
Chief Counsel, FRA, 1200 New Jersey Avenue, SE., Washington, DC 20950 
(telephone: (202) 493-6026); or Sarah Grimmer Yurasko, Trial Attorney, 
Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., Washington, 
DC 20950 (telephone: (202) 493-6390).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Continuous Welded Rail (CWR)
    A. General
    B. Statutory and Regulatory History for CWR
II. Railroad Safety Advisory Committee (RSAC) Overview
III. RSAC Track Safety Standards Working Group
IV. FRA's Approach to CWR in This NPRM
    A. Qualifications and Training of Individuals on CWR
    B. Submission of CWR Plans to FRA
    C. Availability of CWR Written Procedures at CWR Work Sites
    D. Special Inspections
    E. Definition of CWR
    F. Ballast
    G. Anchoring
V. Specific Technical Issues Addressed by the Working Group
    A. Maintaining Desired Rail Installation Temperature
    B. Inspecting for Curve Movement Resulting From Disturbed Track
    C. Speed Restrictions for Maintenance/Rehabilitation Work on 
Disturbed Ballast
    D. Ambient Temperature Versus Rail Temperature
    E. Cold Weather Inspections
VI. Section-by-Section Analysis
VII. Regulatory Impact
    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 Mandate Reform Act of 1995
    G. Energy Impact
    H. Privacy Act Statement

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 two abutting ends of rail and 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 for CWR

    FRA issued the first Federal Track Safety Standards in 1971. See 36 
FR 20336 (October 20, 1971). At that time, FRA addressed CWR in a 
rather general manner, stating, in 49 CFR 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 removed 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.
    Congressional interest in CWR developed. With passage of the Rail 
Safety Enforcement and Review Act of 1992 (Pub. L. 102-365, September 
3, 1992), Congress required the Secretary

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of Transportation to evaluate procedures for installing and maintaining 
CWR and its attendant structure. In 1994, Congress further directed the 
Secretary to specifically evaluate cold weather installation procedures 
for CWR with passage of the Federal Railroad Safety Reauthorization Act 
of 1994 (Pub. L. 103-440, November 2, 1994), codified at 49 U.S.C. 
20142 As delegated by the Secretary, see 49 CFR 1.49(m), FRA evaluated 
those procedures in connection with information gathered from the 
industry and FRA's own research and development activities. FRA then 
addressed CWR procedures by adding Sec.  213.119 during its 1998 
revision of the Track Safety Standards (49 CFR part 213). See 63 FR 
33992 (June 22, 1998).
    Section 213.119, as added in 1998, requires railroads to develop 
and submit to the Federal Railroad Administration, written CWR plans 
containing 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; 
however, it states that each track owner with track constructed of CWR 
shall have in effect and comply with a plan that contains written 
procedures which address the installation, adjustment, maintenance, and 
inspection of CWR, the inspection of CWR joints, and a training program 
for the application of those procedures. It allows each railroad to 
develop and implement its individual CWR plan based on procedures which 
have proven effective for it over the years. The operative assumption 
was that geophysical conditions vary so widely among U.S. railroads 
that, in light what was then known about CWR, CWR plans should vary to 
take account of them. Accordingly, procedures can vary from railroad to 
railroad.
    On August 10, 2005, President Bush signed into law the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (SAFETEA-LU) (Pub. L. 109-59). Section 9005(a) of SAFETEA-LU 
amended 49 U.S.C. 20142 by adding a new subsection (e). This new 
subsection required that within 90 days after its enactment, FRA 
require (1) each track owner using CWR track to include procedures (in 
its procedures filed with FRA pursuant to Sec.  213.119) to improve the 
identification of cracks in rail joint bars; (2) instruct FRA track 
inspectors to obtain copies of the most recent CWR programs of each 
railroad within the inspectors' areas of responsibility and require 
that inspectors use those programs when conducting track inspections; 
and (3) establish a program to review CWR joint bar inspection data 
from railroads and FRA track inspectors periodically. This new 
subsection also provided that whenever FRA determines that it is 
necessary or appropriate, FRA may require railroads to increase the 
frequency of inspection, or improve the methods of inspection, of joint 
bars in CWR.
    Pursuant to this mandate, on November 2, 2005, FRA revised the 
Track Safety Standards by publishing an Interim Final Rule (IFR), 70 FR 
66288, which addresses the inspection of rail joints in CWR. FRA 
requested comment on the IFR and provided the Railroad Safety Advisory 
Committee (RSAC) with an opportunity to review the comments on the IFR. 
To facilitate this review, on February 22, 2006, RSAC established the 
Track Safety Standards Working Group (Working Group). The Working Group 
was given two tasks: (1) To resolve the comments on the IFR, and (2) to 
make recommendations regarding FRA's role in oversight of CWR programs, 
including analyzing the data to determine effective management of CWR 
safety by the railroads. The first task, referred to as ``Phase I'' of 
the CWR review, included analyzing the IFR on the inspection of joint 
bars in CWR territory, reviewing the comments on the IFR, and 
developing recommendations for the final rule. With guidance from the 
Working Group, FRA published a final rule on October 11, 2006, 71 FR 
59677, which addressed the comments on the IFR, adopted a portion of 
the IFR, and made changes to other portions. The final rule became 
effective October 31, 2006, and is codified at 49 CFR part 213. The 
Working Group then turned to the second task, referred to as ``Phase 
II'' of RSAC's referral, which involves an examination of all the 
requirements of Sec.  213.119 concerning CWR-not focused only on those 
concerning joints in CWR. As discussed below, the Working Group 
reported its findings and recommendations to RSAC at its February 20, 
2008 meeting. RSAC approved the recommended consensus regulatory text 
proposed by the Working Group, which accounts for the majority of this 
NPRM.

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 RSAC 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

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    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 
play an active role at the working group level in discussing the issues 
and options and in drafting the language of the consensus proposal, FRA 
is often favorably inclined toward the RSAC recommendation.
    However, FRA is in no way bound to follow the recommendation, and 
the agency exercises its independent judgment on whether 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

    As noted above, RSAC established the Track Safety Standards Working 
Group on February 22, 2006. To address Phase I of RSAC's referral, the 
Working Group convened on April 3-4, 2006; April 26-28, 2006; May 24-
25, 2006; and July 19-20, 2006. The results of the Working Group's 
efforts were incorporated into the final rule that was published on 
October 11, 2006. To address Phase II of RSAC's referral, the Working 
Group convened on January 30-31, 2007; April 10-11, 2007; June 27-28, 
2007; August 15-16, 2007; October 23-24, 2007; and January 8-9, 2008. 
The Working Group's finding and recommendations were then presented to 
the full RSAC on February 20, 2008, as noted above.
    The members of the Working Group, in addition to FRA, include the 
following:
    AAR, including members from BNSF Railway Company (BNSF), Canadian 
National Railway (CN), Canadian Pacific Railway (CP), Consolidated Rail 
Corporation (Conrail), CSX Transportation, Inc. (CSX), Kansas City 
Southern Railway Company (KCS), Norfolk Southern Railway Company (NS), 
and Union Pacific Railroad Company (UP);
    Amtrak;
    APTA, including members from Port Authority Trans-Hudson 
Corporation (PATH), LTK Engineering Services, Northeast Illinois 
Regional Commuter Railroad Corporation (Metra), and Peninsula Corridor 
Joint Powers Board (Caltrain);
    ASLRRA (representing Class III/smaller railroads);
    ASRSM (represented by staff from the California Public Utilities 
Commission (CPUC));
    BLET;
    BMWED;
    BRS;
    Kandrew, Inc.;
    Transportation Technology Center, Inc. (TTCI); and
    UTU.
    Staff from DOT's John A. Volpe National Transportation Systems 
Center (Volpe Center) attended all of the meetings and contributed to 
the technical discussions. In addition, NSTB staff attended all of the 
meetings and contributed to the discussions as well.
    FRA has worked closely with the RSAC in developing its 
recommendations and believes that the RSAC has effectively addressed 
concerns with regard to FRA's management of CWR and rail carriers' 
effective implementation of their CWR plans. 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 NPRM. The Working Group has also 
benefitted in particular 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 proposed rule.
    The Working Group was unable to reach consensus on one item that 
FRA has elected to include in this NPRM. The Working Group did not 
reach consensus with regard to the proposed change to 49 CFR 
213.119(c), which describes the joint installation and maintenance 
procedures that track owners must include in their CWR plans. The FRA 
representatives to the Working Group felt strongly that the text is 
necessary to include in the NPRM, as the failure of CWR joints was the 
principal basis for the 2006 final rule. The FRA members believed that 
the integrity of CWR joints could not be definitively maintained 
without requiring that the specific installation and maintenance 
procedures delineated in proposed Sec.  213.119(c) be included in the 
track owner's CWR plan. On the other hand, the rail carrier 
representatives maintained that such specific requirements would 
interfere with their freedom to modify installation and maintenance 
procedures as they saw fit. Nevertheless, it is FRA's position that the 
text is necessary to prevent the failure of CWR joints and has included 
this singular, non-consensus item into the rule text of this NPRM.

IV. FRA's Approach to CWR in This NPRM

    As opposed to the more narrow approach taken by FRA when publishing 
the final rule on inspections of joints in CWR (Oct. 11, 2006; 71 FR 
59677), FRA broadly reviewed all of Sec.  213.119 for purposes of this 
NPRM. In collaboration with the Working Group, FRA examined compliance 
with Sec.  213.119 in general and concerns brought forward by the 
industry. At the end of the first Working Group meeting, FRA decided to 
focus the review on the following issues: The training/re-training of 
individuals qualified to maintain and inspect CWR; the submission of 
CWR plans to FRA; the availability of a carrier's plan at CWR work 
sites; special inspections of CWR; the definition of CWR; ballast; and 
anchoring requirements.

A. Qualifications and Training of Individuals on CWR

    During the rulemaking on inspections of joints in CWR, the BMWED 
suggested that there should be annual re-training of track inspectors 
on joint bar inspections in CWR. FRA understood this comment as 
pertaining to CWR training in general and resolved to address this 
concern as part of the Phase II task of broadly reviewing Sec.  
213.119. In carrying out this task, and because of the concern raised 
by the BMWED, the Working Group decided that it would be beneficial to 
review accident data from

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Class I and shortline railroads to determine whether accidents on CWR 
could be attributed to training deficiencies of track inspectors. The 
Working Group established the Accident Review Task Force (AR Task 
Force) to facilitate this review and analysis, and it was comprised of 
FRA and the following Working Group members:
    AAR, including BNSF, CSX, CP, NS, UP;
    Amtrak;
    APTA, including Metra;
    ASLRRA;
    BMWED; and
    BRS.
    Staff from the Volpe Center and NTSB also participated in this 
effort, which focused on researching and analyzing accident data from 
the years 2000 to 2007 for major causal factors of accidents on CWR. 
The AR Task Force initially reviewed over 1100 accident/incident report 
forms from January 2000 to August 2007. After taking into consideration 
the location of the most severe accidents/incidents, the AR Task Force 
narrowed its review to exclude accidents/incidents on Class 1 and 
excepted track, as defined in 49 CFR part 213. The final review 
included over 200 reports that met the objectives and criteria for 
study.
    The AR Task Force determined that a high volume of accidents was 
due to misalignment of track, caused by sunkinks or buckling of the 
track. The AR Task Force also discovered that each incident studied 
occurred after track work had been performed recently, and, 
surprisingly, that the carriers' CWR engineering standards were not 
being followed in conducting various types of track-work. In 
particular, the research disclosed failure to adequately de-stress the 
track following a previous derailment; failure to maintain the neutral 
temperature of the rail and to record the amount of rail added or 
removed during installation; failure to adjust or replace deficient 
anchors; and failure to place the proper speed restrictions and/or 
maintain a sufficient length of time and/or tonnage on disturbed track. 
Moreover, upon review of the railroads' CWR program plans, FRA noted 
that the railroads were not providing comprehensive guidelines for the 
training/retraining of their employees in the application of CWR 
procedures.
    Given the concerns raised, the Working Group decided that it was 
necessary to ensure that individuals are properly qualified and trained 
to install, adjust, maintain, and inspect CWR track. Section Sec.  
213.7 currently delineates how a railroad must designate (1) qualified 
persons to supervise restorations and renewals of track, (2) qualified 
persons to inspect track, and (3) persons who may pass trains over 
broken rails and pull aparts. However, the section contains no explicit 
provision for individuals to supervise restorations and renewals of 
track, or for individuals to inspect track, specific to CWR. In order 
to address qualification and training concerns specific to individuals 
qualified on CWR, the Working Group recommend adding a new paragraph 
(c) to Sec.  213.7. See the Section-by-Section Analysis, below, for 
further discussion of the proposed changes to this section.

B. Submission of CWR Plans to FRA

    The second issue that was raised at the Working Group discussions 
involved the submission of CWR plans to FRA. FRA representatives raised 
the concern that rail carriers were presenting plans to FRA's Office of 
Safety that were not the current plans, were unenforceable because of 
their vagueness, and did not contain all of the procedures in a single, 
comprehensive document. The Working Group therefore discussed: (1) The 
need to develop a mechanism for updating and submitting CWR program 
procedures in a timely manner to FRA's Office of Safety; (2) 
notification and re-submission criteria for any and all modifications 
to program plans; (3) the need for CWR procedures to be contained in a 
single document; and (4) the desirability of track owners submitting 
changes to CWR procedures to FRA prior to implementation, as immediate 
implementation can cause problems with enforcement activities and 
information being available to FRA personnel in the field.
    The Working Group determined that there was a need to establish 
procedures for the submission and implementation of modified CWR plans 
to maintain consistency with the continued growth of the industry 
through developments in engineering and technology. Initially, rail 
carrier representatives did not agree with FRA's position on the need 
for changes to their CWR procedures to be sent to FRA prior to their 
implementation. They contended that changes in CWR procedures should be 
effective immediately, without having to submit the changes to FRA in 
advance. For example, the rail carrier representatives stated that the 
ability to change their plans as they wished would help them to more 
expeditiously incorporate recent developments based upon engineering 
and accident review findings. However, since FRA enforces the plan that 
the track owner has on file with FRA, if track owners change their 
plans without first notifying FRA, the agency can not properly enforce 
their plans. The rail carrier representatives acknowledged this issue 
and agreed to FRA's proposal that any change to a CWR plan be submitted 
to FRA 30 days prior to its implementation. Nevertheless, FRA makes 
clear that a track owner is allowed to immediately implement more 
restrictive measures than provided for in the plan on-file with FRA. 
The track owner can, of course, do more than the minimum measures 
provided for in its plan, such as to address an immediate safety 
concern. However, the track owner would not be able to do less than the 
minimum measures provided for in its plan without first following the 
proposed procedures for changing the plan.
    The rail carrier representatives stated that they would like to 
know when FRA has received a submitted CWR plan. FRA agreed that this 
request was reasonable, and agreed to include a provision in the 
regulation stating that FRA will issue a written statement 
acknowledging receipt of the plan to the track owner. The Working Group 
also discussed that the current regulatory text was vague as to what 
FRA did with a plan once it was received. FRA has determined that the 
best course of action is to allow for the agency to review a plan and, 
if it is disapproved, to state the reasons for the disapproval. This is 
intended to allow the track owner to better understand and remedy the 
deficiencies that FRA identifies with its plan. The proposed regulatory 
text also provides a process by which the track owner could appeal an 
initial rejection of its CWR plan by FRA. This process is further 
discussed in the Section-by-Section Analysis, below.

C. Availability of CWR Written Procedures at CWR Work Sites

    With the passage of SAFETEA-LU in 2005, Congress mandated that FRA 
instruct its track inspectors to obtain the most recent copies of rail 
carriers' CWR plans and to use these plans when conducting track 
inspections. In response, FRA posted the CWR plans received by the 
Office of Safety on FRA's Intranet site, where they are available to 
all Federal and State inspectors, and has instructed all of its 
inspectors to use these plans when conducting track inspections.
    The Working Group discussed the desirability of having copies of 
the carrier's written CWR procedures at every work site. FRA and labor 
representatives maintained that updated revisions and modifications to 
the CWR

[[Page 73082]]

plans should be made available to the carrier personnel responsible for 
the installation, adjustment, maintenance, and inspection of CWR; 
railroads should maintain/retain these procedures and guidelines within 
their engineering manuals. FRA proposed to the Working Group that the 
railroads provide a copy of their CWR program plans to be maintained 
on-site during the performance of duties either with the employee in 
charge or the qualified employee conducting the work. This type of 
practice would ensure that personnel understand the track owner's CWR 
policies and procedures.
    The Working Group reached consensus that the track owner should 
make available, in one comprehensive manual, a copy of the track 
owner's CWR plan, including all revisions, appendices, updates, and 
referenced materials, at every job site where personnel are assigned to 
install, inspect, and maintain CWR.

D. Special Inspections

    During Phase I of the Working Group's assignment, it was determined 
that the issue of special inspections of CWR be tabled until Phase II. 
During preliminary Phase II discussions, the Working Group recognized 
that this issue would be better resolved by enlisting additional 
resources for further technical engineering research and analysis. The 
Working Group therefore formed the Technical Issues Task Force (TI Task 
Force), which was principally comprised of members from the Volpe 
Center and Kandrew, Inc., an independent engineering contractor engaged 
to represent the interests of the AAR. Technical concerns discussed by 
the TI Task Force included: speed restrictions for track work following 
mechanized stabilization (i.e., how slow orders are lifted); 
maintaining the desired rail installation temperature range; inspecting 
for curve movement; the relationship between ambient and rail 
temperature; special inspections (severe weather effects on rail); and 
rail anchoring requirements. The TI Task Force reported to the Working 
Group that all of these issues should be handled either individually or 
jointly in special CWR inspections. These issues are further discussed, 
below, in the section on Specific Technical Issues Addressed by the 
Working Group.

E. Definition of CWR

    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 nominally one 
continuous rail, rail joints may exist for many different reasons. CWR 
is currently defined as rail that has been welded together into lengths 
exceeding 400 feet. Labor representatives questioned whether the 
railroads would consider CWR into which a joint has been installed (to 
repair a rail break or remove a detected defect, for example) to be 
jointed rail and no longer subject to the railroad's CWR maintenance 
policy. FRA's position is that rail designated as CWR when installed 
should remain CWR irrespective of whether it contains a joint or 
joints.

F. Ballast

    In its ongoing review of CWR plans, FRA noted that some track 
owners included a definition of what constitutes ``sufficient ballast'' 
in their plans. Some plans cited specific measurements prescribing the 
amount of ballast appropriate for various track locations. During the 
Working Group meetings, labor representatives proposed that FRA adopt a 
definition of minimum sufficient ballast. The labor representatives 
also requested additional information from the Volpe Center to address 
concerns about how track ballast affects track strength. The ensuing 
discussion highlighted the fact that the track owners' CWR plans (which 
are submitted to FRA) are supplemented in practice by additional 
railroad-specific policies and procedures (``best practices'') which 
are often more restrictive. Rail carrier representatives were reluctant 
to have explicit ballast requirements in their CWR plans, due to the 
concern that ballast conditions may not always be maintained to the 
presumably more stringent internal standards.
    The Track Safety Standards currently define ballast in Sec.  
213.103 as material which will transmit and distribute the load of the 
track and railroad rolling equipment to the subgrade; restrain the 
track laterally, longitudinally, and vertically under dynamic loads 
imposed by railroad rolling equipment and thermal stress exerted by the 
rails; provide adequate drainage for the track; and maintain proper 
track crosslevel, surface, and alinement. It is FRA's position that 
Sec.  213.103 appropriately defines the term ``ballast'' for use by the 
regulated industry.

G. Anchoring

    The Working Group discussed rail anchoring specifically in terms of 
controlling longitudinal force near joints installed at the end of CWR 
strings and near joints within CWR strings. A CWR string is understood 
to be a length of CWR rail set aside by the railroad for installation 
in the track. Of concern is the relative effectiveness of anchoring 
patterns--every tie versus every other tie in conventional, wood tie 
construction. Railroads typically do not change anchoring patterns when 
installing joints within CWR strings, and generally have policies to 
remove the joint when practical. At the end of CWR strings some 
railroads under certain circumstances box-anchor every tie for a 
prescribed distance to help control the longitudinal forces at the 
transition. This is not a universally accepted practice. The primary 
effect of this practice is to reduce the longitudinal force carried by 
the joint when the rail is in tension. As the force carried by the 
joint increases, the predicted life of the joint shortens.
    The Group also focused on when the joint would be removed, and 
proposed time limits for certain actions based on the performance of 
the joint in practice. One of the concerns is that as the joint fails 
the existing stress-free temperature of the rail may significantly be 
reduced, and, hence, require subsequent adjustment. Although the 
technical aspects of this issue were agreed upon by the Working Group, 
consensus was not reached on including specific requirements in the 
regulatory text. Please see the Section-by-Section Analysis for further 
discussion on this issue.

V. Specific Technical Issues Addressed by the Working Group

    In addition to technical issues already discussed above, the 
Working Group also addressed a number of other technical issues. Many 
of these issues arose out of the Working Group's review of a proposed, 
generic plan for the installation and maintenance of CWR, which was 
based on the AAR's submission of CWR plans for Class I railroads which 
were very similar in form and content. The Working Group analyzed each 
aspect of the generic plan to determine if it fulfilled all of the 
safety requirements of Sec.  213.119. After discussion and analysis of 
the technical issues raised, as further discussed below, the Working 
Group revised the generic plan. In collaboration with the Working 
Group, FRA further revised and redacted the plan, and posted it on the 
FRA public Web site found at https://safetydata.fra.dot.gov/officeofsafety/. The plan reflects the labors of the Working Group as 
well as FRA's analysis, and it is not intended to be the definitive 
guide for a CWR plan; FRA understands that each railroad has its own 
specific needs and circumstances that should be taken into account in 
formulating its CWR plans.

[[Page 73083]]

    The generic plan incorporates technical issues addressed by the 
Working Group which include: Maintaining the desired rail installation 
temperature range; inspecting for curve movement as a result of 
disturbed track; speed restrictions for maintenance/rehabilitation work 
on disturbed ballast; ambient temperature vs. rail temperature; 
anchoring; and cold weather inspections. The following describes the 
Working Group consensus on these topics.

A. Maintaining Desired Rail Installation Temperature

    The Working Group developed the concept of the rail neutral 
temperature (RNT) ``safe range.'' The lower limit of this safe range is 
defined as 20[deg] F below the designated rail laying temperature (RLT) 
for a particular territory. Rail that has pulled apart, broken, or been 
cut for defect removal must be readjusted such that its neutral 
temperature is within the safe range. If the rail has not been so 
readjusted before the rail temperature exceeds a prescribed value, the 
railroad would either: (1) Apply a speed restriction of 25 mph, or (2) 
apply a speed restriction of 40 mph in conjunction with a daily 
inspection of the rail made during the heat of the day. The track owner 
must not, however, raise the speed of track in this situation to 40 mph 
if the track was in operation at a lower speed. Locations at which the 
rail neutral temperature is known to have not been adjusted to within 
the safe range (20 [deg]F below designated RLT) would ultimately be 
adjusted in 365 days. Each railroad would document its inspection 
procedures for slow orders and special inspections due to heat. When 
rail separations occur in CWR, the rail gap and rail temperature should 
be recorded to facilitate the estimation of the rail neutral 
temperature at the location of the separation.

B. Inspecting for Curve Movement Resulting From Disturbed Track

    The Working Group analyzed best industry practices for inspecting 
for curve movement as a result of disturbed track. The Group came to 
the consensus that, when surfacing disturbed track with a 3[deg] (or 
higher degree) curve, the curve must be staked and the curve movement 
monitored when the rail temperature is substantially (50 degrees) below 
the designated RLT. If more than 3'' of curve movement occurs, then 
slow orders must be placed if the curve is not lined out before the 
rail temperature reaches the desired RLT.

C. Speed Restrictions for Maintenance/Rehabilitation Work on Disturbed 
Ballast

    Certain track maintenance procedures result in disturbance of the 
ballast which can reduce its capacity to restrain the track from 
unwanted lateral movement. The passage of train traffic over the track 
or the use of ballast stabilizers can restore this capacity by 
consolidating the ballast. Railroads typically apply speed restrictions 
following such track work until sufficient consolidation has occurred 
and the restraining capacity of the ballast is restored. The Working 
Group agreed that the equivalent of 0.1 million gross tons (``MGT'') of 
traffic would be sufficient to allow resumption of normal speeds over 
the track. This degree of consolidation may be achieved through the use 
of properly tuned ballast stabilizers. The Working Group also agreed 
that the passage of 16 passenger trains or 8 freight trains (or a 
proportional combination thereof) would be equivalent to 0.1 MGT of 
traffic to allow resumption of normal speeds.

D. Ambient Temperature Versus Rail Temperature

    The Working Group agreed that all references to temperature should 
refer to rail temperature. In hot weather, the rail temperature is 
generally greater than the ambient (air) temperature. For the purposes 
of planning or scheduling track work in the short term in hot weather, 
the Working Group believes it appropriate for a railroad to use the 
predicted ambient temperature plus 30 [deg]F to estimate the rail 
temperature. In cold weather, the rail temperature is essentially equal 
to the ambient temperature, and no such adjustment is necessary.

E. Cold Weather Inspections

    The Working Group agreed that cold weather inspections would be 
triggered at a minimum when the rail temperature is forecast to be 
100[deg] or more below the designated RLT. Cold weather inspections are 
necessary in order to safely detect pulled apart rail before a train 
passes over damaged rail.
    Again, FRA notes that these agreements on technical issues 
regarding the management of CWR track were intended to describe one set 
of CWR procedures that could be recognized as providing suitable 
assurance of safety. FRA intends to use the technical agreements, as 
reflected in the generic CWR plan, as a benchmark document for 
reference as actual railroad plans are received and reviewed. Railroads 
remain free to deviate from this benchmark approach, but FRA would 
expect to receive supporting analysis explaining how the relevant 
safety objectives are met by the alternative means. FRA is not 
specifically requesting comment on these technical issues, which are 
discussed here as useful background information.

VI. Section-by-Section Analysis

    Section 213.7 Designation of qualified persons to supervise certain 
renewals and inspect track.
    FRA is proposing to revise Sec.  213.7 principally by adding a new 
paragraph (c), which would create a new requirement for the track owner 
to specifically designate individuals who are qualified to inspect CWR 
track or supervise the installation, adjustment, and maintenance of CWR 
track in accordance with the track owner's written procedures. The new 
paragraph would require that the designated individual have: (1) 
Current qualifications under either paragraphs (a) or (b) of this 
section; (2) successfully completed a comprehensive training course 
specifically developed for the application of written CWR procedures 
issued by the track owner; (3) demonstrated to the track owner that he/
she knows and understands the requirements of the written CWR 
procedures, can detect deviations from those requirements, and can 
prescribe appropriate remedial action(s) to correct or safely 
compensate for those deviations; and (4) written authorization from the 
track owner to prescribe remedial action(s) to correct or safely 
compensate for deviations from the requirements in the CWR procedures 
and successfully completed a recorded examination on the procedures as 
part of the qualification process to be made available to FRA.
    FRA has determined that, as CWR track has characteristics 
inherently different than those of traditional jointed rail, track 
owners should be required to designate which individuals are 
specifically qualified to inspect, or supervise the installation, 
adjustment, and maintenance of CWR. In addition to the qualifications 
that an individual must have under paragraph (a) to perform track 
maintenance work, or the qualifications under paragraph (b) to inspect 
track, an individual designated under paragraph (c) would have to be 
well-versed in the maintenance of CWR track as detailed in the track 
owner's CWR plan.
    For guidance, FRA originally looked to Sec.  213.305(c), which 
regulates the requirements of an individual qualified

[[Page 73084]]

to inspect CWR track or supervise the installation, adjustment, and 
maintenance of CWR in accordance with the track owner's written 
procedures for train operations at track classes 6 and higher. The 
Working Group discussed the merits of the requirement in Sec.  
213.305(c)(2), which states that an individual must have ``successfully 
completed a training course of at least eight hours duration 
specifically developed for the application of written CWR procedures 
issued by the track owner.'' Carrier representatives maintained that 
the requirement to have an eight-hour course would interfere with 
current training methods. As the FRA representatives agreed that the 
comprehensive nature of the training course is more important than its 
duration, the Working Group reached consensus that the individual would 
have to successfully complete a comprehensive training course pursuant 
to proposed paragraph (c)(2), which does not specify the duration of 
the training.
    The Working Group also discussed the merits of requiring the 
individual to successfully complete an examination on the track owner's 
CWR procedures. In Sec.  213.305(c)(4), individuals qualified on CWR 
for train operations at track classes 6 and higher must successfully 
complete a recorded examination on the track owner's CWR procedures. 
The paragraph states that this examination may be written, or it may be 
a computer file with the results of an interactive training course. 
Working Group members were concerned with the proposal that the 
examination be in a written context. It was argued that, quite often, a 
supervisor can better test someone's knowledge through practical 
application in the field as opposed to a written test. In order to 
accommodate this option for testing, FRA agreed to define the required 
examination in proposed paragraph (c)(4) as ``recorded'' instead of 
written; therefore, track owners would have the flexibility to test an 
individual's knowledge how they best see fit. However, it should be 
noted that the results of this examination would have to be recorded so 
that FRA may inspect the basis for the qualification of an individual 
under paragraph (c).
    In proposing to add new paragraph (c) to this section, FRA is 
proposing to redesignate current paragraphs (c) and (d) as paragraphs 
(d) and (e), respectively. FRA is also proposing to make conforming 
changes to these paragraphs to cross-reference the new paragraph (c), 
in the same way that the current paragraphs of this section are cross-
referenced. Although FRA is setting out the entire text of these 
paragraphs for clarity, the changes to the proposed, redesignated 
paragraphs would involve only adding the cross-reference to the 
introductory text of the paragraphs, and removing the superfluous 
reference ``of this part'' in redesignated paragraph (d)(4).
    Section 213.119 Continuous welded rail (CWR); general.
    FRA is proposing to amend Sec.  213.119 by adding new provisions 
and revising existing provisions, as discussed below. In part because 
of the proposed addition of new paragraphs and the consequent need to 
redesignate existing paragraphs, FRA is setting out Sec.  213.119 in 
its entirety to enable the regulated industry to more readily 
understand and follow its requirements, given the length of this 
section and the number of changes proposed.
    Introductory text. During Working Group discussions, FRA 
representatives expressed concern that this section's current 
introductory text does not explicitly address certain procedural issues 
associated with CWR plans. The text does not explain how a track owner 
would revise a CWR plan that has already been submitted to FRA, or what 
the process would be for FRA to require a revision to a plan, including 
the process to appeal a revision requirement. FRA is therefore 
proposing to make clear that a track owner must file its CWR plan with 
the FRA Associate Administrator for Safety not less than 30 days before 
it implements its CWR plan, including submitting revisions to an 
existing CWR plan in order for the changes to take effect under the 
regulation. FRA would send a written statement to the track owner 
acknowledging receipt of the plan. Also, the proposed regulation 
provides more guidance to the track owner regarding FRA's process of 
reviewing submitted plans. FRA's resources do not permit it to review 
each plan prior to its implementation, however, FRA will review plans 
subsequent to implementation as circumstances require or resources 
permit. If the review indicates that revisions to the plan are needed 
to bring the plan into compliance with the requirements of the rule, 
FRA would give notice of the revision requirement in writing to the 
track owner, including the basis of the revision requirement. The track 
owner would have 30 days either to implement FRA's required plan 
revisions, or to respond and provide evidence in support of the 
original plan. FRA would then render a final decision with regard to 
the plan, and the track owner would have 30 days from receipt of FRA's 
final decision to amend the plan and resubmit it in accordance with 
FRA's decision. The amended plan would become effective upon its 
submission to FRA.
    Paragraphs (a) and (b). Paragraphs (a) and (b) would be republished 
in their entirety with no changes.
    Paragraph (c). FRA is proposing to redesignate current paragraph 
(c) as paragraph (d), and add a new paragraph (c) in its place. New 
paragraph (c) would revise the requirements for CWR joint installation 
and maintenance procedures to be included in a track owner's CWR plan. 
The new paragraph proposes to require that rail joints be installed per 
the requirement in Sec.  213.121(e), which states, ``In the case of 
continuous welded rail track, each rail shall be bolted with at least 
two bolts at each joint.'' The proposed paragraph further states that, 
in the case of a bolted joint installed during CWR installation after 
the publication date of the final rule, within 60 days the track owner 
must either: (1) Weld the joint; (2) install a joint with six bolts 
\2\; or (3) anchor every tie 195 feet in both directions of the joint. 
Finally, the proposed paragraph states that, in the case of a bolted 
joint in CWR experiencing service failure or a failed bar with a rail 
gap present, the track owner must either: (1) Weld the joint; (2) 
remediate joint conditions, replace the broken bolts, and weld the 
joint within 30 days; (3) replace the broken bar, replace the broken 
bolts, install two additional bolts, and adjust the anchors; (4) 
replace the broken bar, replace the broken bolts, and anchor every tie 
195 feet in both directions from the CWR joint; or (5) add rail with 
provisions for later adjustment pursuant to (d)(2) of this section.
---------------------------------------------------------------------------

    \2\ See 49 CFR Sec.  213.121(e), stating that, in the case of 
CWR, each rail shall be bolted with at least two bolts at each 
joint. This is a total of four bolts required at each joint.
---------------------------------------------------------------------------

    FRA noted during Working Group discussions that this section 
currently lacks an explicit reference to how a rail joint in CWR shall 
be bolted. As this requirement appears in Sec.  213.121(e), FRA decided 
that it would be prudent to also state this requirement in Sec.  
213.119 so as to include all requirements for CWR in one section. This 
requirement would be stated in Sec.  213.119(c) and would serve as a 
reminder to track owners that they cannot create their own joint bolt 
requirements in their CWR plans that are less restrictive than those 
specified in the regulation.
    As previously mentioned, the Working Group was not able to reach

[[Page 73085]]

consensus on this proposed paragraph (c). However, virtually identical 
text was included and discussed in the generic CWR plan generated by 
the rail carrier representatives, as discussed above. The rail carrier 
representatives were not in favor of including this paragraph, 
contending that its inclusion would constitute ``regulatory creep.'' 
These representatives did not believe it was necessary to incorporate 
the text into the rule if FRA knew that they had already proposed to 
add the text to their individual CWR plans. Nevertheless, FRA strongly 
feels that inclusion of the paragraph is necessary. With the history of 
high-profile derailments on CWR due to joint bar failure, as discussed 
in the October 11, 2006 final rule (71 FR 59677), FRA stresses the 
importance for CWR track owners to follow the installation and 
maintenance procedures proposed in this paragraph. FRA also notes that 
the maintenance procedures proposed were analyzed and discussed at 
length by the Working Group and found to represent sound industry 
guidance to avoid a derailment on CWR track due to poor joint 
installation or maintenance.
    Paragraph (d). FRA is proposing to redesignate current paragraph 
(c) as paragraph (d). No substantive change to this paragraph's 
requirements is intended.
    Paragraph (e). FRA is proposing to redesignate current paragraph 
(d) as paragraph (e). No substantive change to this paragraph's 
requirements is intended.
    Paragraph (f). FRA is proposing to redesignate current paragraph 
(e) as paragraph (f). FRA is also proposing to revise paragraph (f)'s 
format to more clearly identify its requirements and add a new 
paragraph (f)(1)(ii) which would require the track owner to have 
procedures in the CWR plan that govern train speed when the difference 
between the average rail temperature and the rail neutral temperature 
is in a range that causes buckling-prone conditions to be present at a 
specific location. ``Rail temperature'' is currently defined as ``the 
temperature of the rail, measured with a rail thermometer,'' and, as 
discussed in proposed, redesignated paragraph (l), below, FRA is 
proposing to add a definition for ``rail neutral temperature'' (RNT) as 
``the temperature at which the rail is neither in compression nor in 
tension.'' When maintaining the integrity of CWR track, the track owner 
needs to be concerned not only with the actual rail temperature, but 
also with the rail neutral temperature. FRA notes that the track owner 
would also have the responsibility to quantify the rail neutral 
temperature at a specific location.
    As previously stated, FRA notes that there has been a significant 
number of derailments caused by buckled track. Because of this safety 
concern, FRA is proposing to require track owners to reduce train speed 
over areas where there is an increased possibility of track buckling. 
By reducing the train speed, FRA anticipates that track owners will be 
able to reduce the probability of a catastrophic derailment caused by 
track buckling.
    Paragraph (g). FRA is proposing to redesignate current paragraph 
(f) as paragraph (g). FRA is also proposing to revise the requirements 
of this paragraph by specifying that track owners must have in their 
CWR plans procedures which prescribe when physical track inspections 
are to be performed to detect not only buckling-prone conditions, but 
also pull-apart prone conditions.
    This paragraph currently is focused only on when physical track 
inspections are required to identify buckling-prone conditions in CWR 
track. The requirements for these inspections to detect buckling-prone 
conditions would not be changed. In paragraph (g)(1)(i), track owners 
would still be required to have procedures in their CWR plans that 
address inspecting track to identify buckling-prone conditions in CWR, 
which include: (A) Locations where tight or kinky rail conditions are 
likely to occur, and (B) locations where track work of the nature 
described in redesignated paragraph (f)(1)(i) of this section have 
recently been performed. As discussed above, redesignated paragraph 
(f)(1)(i) would describe maintenance work, track rehabilitation, track 
construction, or any other event which disturbs the roadbed or ballast 
section and reduces the lateral or longitudinal resistance of the 
track. The track owner would also continue to specify the timing of the 
inspection as well as the appropriate remedial actions to be taken when 
buckling-prone conditions are found, as provided in paragraph (g)(2), 
discussed further below.
    Pull-apart prone conditions would be addressed with the addition of 
paragraph (g)(1)(ii), which would require the track owner to include 
procedures in its CWR plan that prescribe when physical track 
inspections are to be performed to identify pull-apart prone conditions 
in CWR track. The procedures must include locations where pull-apart or 
stripped-joint rail conditions are likely to occur. As provided in 
paragraph (g)(2), the track owner must also specify the timing of the 
inspection and the appropriate remedial actions to be taken when pull-
apart prone conditions are found. Paragraph (g)(2) is based on the 
current text of paragraph (f)(2), which addresses buckling-prone 
conditions, expanding it to address pull-apart prone conditions as 
well.
    The Working Group discussed that changes in temperature can greatly 
affect the integrity of CWR. Typically, significant increases in rail 
temperature can cause buckling-prone conditions, and significant 
decreases in rail temperature can cause pull-apart prone conditions. 
FRA has chosen not to quantify the specific temperatures that would 
cause a buckling-prone condition or a pull-apart prone condition. The 
Working Group discussed that, given the varied geographical composition 
of each railroad entity, specifying these temperatures would be best 
left to the track engineering program of each track owner. Therefore, 
FRA has declined to specify at what temperatures a physical track 
inspection under paragraph (g)(1) would be required, choosing instead 
to propose requiring that the track owner identify the conditions and 
situations when a physical track inspection would need to occur due to 
a buckling-prone or pull-apart prone condition.
    Paragraph (h). FRA is proposing to redesignate paragraph (g) as 
paragraph (h). FRA is not proposing any substantive change to the 
requirements of this paragraph. FRA is only proposing to make 
conforming amendments to cross-references in this paragraph to reflect 
the proposed redesignation of the paragraphs in the section.
    Paragraph (i). FRA is proposing to redesignate paragraph (h) as 
paragraph (i). FRA is also proposing to revise this paragraph by 
requiring the track owner to have in effect a comprehensive training 
program for the application of its written CWR procedures with 
provisions for annual re-training for individuals designated under 
Sec.  213.7(c) to supervise the installation, adjustment, and 
maintenance of CWR track and to perform inspections of CWR track. 
Additionally, FRA is proposing that the track owner make the training 
program available for review by FRA upon request.
    This paragraph currently requires that the track owner's training 
program have provisions for ``periodic'' re-training of qualified 
individuals. The Working Group discussed this requirement and advised 
that the term ``periodic'' was undesirably vague. A brief, informal 
survey at one of the Working Group meetings revealed that some rail 
carriers re-trained individuals every year, while others re-trained 
individuals every two

[[Page 73086]]

or three years. FRA identified that a leading cause of carrier non-
compliance with Sec.  213.119 is a lack of training among individuals 
qualified to supervise the installation, adjustment, and maintenance of 
CWR track and to perform inspections of CWR track. The AR Task Force's 
study showed that a significant number of accidents/incidents could be 
attributed to the failure to comply with the track owner's CWR policy. 
In order to address this serious safety concern, FRA determined that it 
was necessary to more specifically state when qualified individuals 
must be re-trained.
    Within the Working Group, FRA representatives proposed to revise 
this paragraph by specifying the months or days that should pass 
between the re-training of qualified individuals. Rail carrier 
representatives stated that this would not give them the flexibility to 
train individuals at pre-determined training classes and would add to 
operational costs. In order to address the concerns of the rail carrier 
representatives, FRA agreed that it would be sufficient to require 
annual re-training of individuals. FRA notes that, for purposes of this 
paragraph, ``annual'' means ``calendar year,'' as opposed to a 365-day 
period.
    As FRA is proposing to amend Sec.  213.7 to include a new paragraph 
(c) that explicitly addresses how a track owner designates an 
individual as qualified to supervise the installation, adjustment, and 
maintenance of CWR track and to perform inspections of CWR track, FRA 
decided that it was necessary to include a reference to proposed Sec.  
213.7(c) in the proposed revision to this Sec.  213.119(i).
    In paragraph (i), FRA is also proposing to require that the track 
owner make the training program available for review by FRA upon 
request. Due to the unique and individual nature of training programs, 
FRA determined that it would not be cost-effective for the agency to 
examine the training program of each track owner in addition to its CWR 
plan any time a change is made to the plan. However, particularly in 
the event of non-compliance with the CWR regulations, FRA believes that 
it should have the option of examining how qualified individuals are 
trained to apply the track owner's written CWR procedures.
    During the Working Group's meetings, Class I railroad 
representatives agreed to voluntarily make an initial submission of 
their CWR training programs to FRA. FRA also agreed that, in its Track 
Safety Standards Compliance Manual, track inspectors would be 
instructed not to request the training program of a specific track 
owner unless under the specific direction of FRA management. Rather, 
FRA's headquarters staff would undertake the responsibility of 
obtaining and disseminating this information, as needed, to both FRA 
inspectors and inspectors from States participating in rail safety 
enforcement activities under 49 CFR part 212.
    Paragraph (j). FRA is proposing to redesignate current paragraph 
(i) as paragraph (j). FRA is not proposing any substantive changes to 
the requirements of this paragraph, however. FRA is proposing only to 
make a conforming change to the cross-reference to another paragraph in 
this section, due to the proposed redesignation of the paragraphs in 
this section, and to correct the cross-reference so that it references 
``this section''-not ``this part.''
    Paragraph (k). FRA is proposing to add a new paragraph (k) that 
would require the track owner to make readily available, at every job 
site where personnel are assigned to install, inspect or maintain CWR, 
a copy of the track owner's CWR procedures and all revisions, 
appendices, updates, and referenced materials related thereto prior to 
their effective date. Additionally, such CWR procedures would be 
required to be issued and maintained in one comprehensive engineering 
standards and procedures manual.
    Since the implementation of the CWR regulations, FRA has noted that 
a number of rail carriers maintain two different sets of CWR 
procedures; rail carriers have been discovered to maintain the set of 
CWR procedures submitted to FRA pursuant to this Sec.  213.119, as well 
as maintain a separate set of CWR procedures to be used by personnel in 
the field. While FRA takes no issue with a rail carrier instructing its 
personnel to maintain more restrictive CWR procedures in the field than 
what is on-file with FRA, FRA stresses that rail carriers are required 
to train their personnel on the plan on-file with FRA. While FRA would 
continue to enforce the CWR plan on-file with its Office of Safety, 
having the procedures required to be at every job site where personnel 
are assigned to install, inspect or maintain CWR would ensure that 
personnel in the field understand which set of procedures FRA will hold 
them responsible for compliance with pursuant to the Federal 
regulations.
    Paragraph (l). FRA is proposing to redesignate current paragraph 
(j) as paragraph (l). This paragraph contains definitions to be used in 
connection with this section. FRA is proposing to revise two existing 
definitions, remove a definition, add a new definition, and make non-
substantive changes to correct the capitalization of the definitions. 
Specifically, FRA is proposing to change the definition of ``Continuous 
Welded Rail (CWR)'' to mean ``rail that has been welded together into 
lengths exceeding 400 feet. Rail installed as CWR remains CWR, 
regardless of whether a join