Track Safety Standards; Continuous Welded Rail (CWR), 42988-43006 [E9-20253]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 74, Number 163 (Tuesday, August 25, 2009)]
[Rules and Regulations]
[Pages 42988-43006]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-20253]



[[Page 42987]]

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Part III





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); Final Rule

Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / 
Rules and Regulations

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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: Final rule.

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SUMMARY: FRA is amending the Federal Track Safety Standards to promote 
the safety of railroad operations over continuous welded rail (CWR). In 
particular, FRA is promulgating 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 
clarifying the procedures associated with the submission of CWR plans 
to FRA by track owners. The final rule specifies that these plans 
should add focus on inspecting CWR for pull-apart prone conditions, and 
on CWR joint installation and maintenance procedures. This final rule 
will also make other changes to the requirements governing CWR.

DATES: Effective date: This final rule is effective August 25, 2009.
    Compliance dates: October 9, 2009 for Class I railroads; November 
23, 2009 for Class II railroads; and February 22, 2010 for Class III 
railroads.

FOR FURTHER INFORMATION CONTACT: Kenneth Rusk, Staff Director, Office 
of Railroad Safety, FRA, 1200 New Jersey Avenue, SE., Washington, DC 
20590 (telephone: (202) 493-6236); or Sarah Grimmer Yurasko, Trial 
Attorney, Office of the 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 Final Rule
    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. Response to Public Comment
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 Mandates 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), codified at 49 CFR part 213. 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 (Pub. L. 102-365, September 3, 1992), 
Congress required the Secretary of Transportation (Secretary) 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. See 63 FR 33992 (June 22, 1998).
    Section 213.119, as added in 1998, requires railroads to develop 
and submit to FRA, 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 of 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

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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 CWRB--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 the 
notice of proposed rulemaking (NPRM) that FRA published on December 1, 
2008 at 73 FR 73078. FRA received five comments during the public 
comment period for the NPRM, which the agency will address in the 
discussion of this final rule.

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 stakeholder 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 Employes 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 
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

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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), The 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 benefited 
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 benefited 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 final rule.
    The Working Group was unable to reach consensus on one item that 
FRA has elected to include in this final rule. The Working Group did 
not reach consensus with regard to the 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 final rule, 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 Sec.  213.119(c) be included in the track 
owner's CWR plan. On the other hand, the rail carrier representatives 
argued 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 final rule.

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

    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 
final rule. 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 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, and 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 213.7 
previously delineated how a railroad must designate (1) qualified 
persons to supervise restorations and renewals of

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track, (2) qualified persons to inspect track, and (3) persons who may 
pass trains over broken rails and pull-aparts. However, the section 
contained 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 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 \2\ 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.
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    \2\ In November 2008 the Office of Safety was renamed the Office 
of Railroad Safety.
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    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 cannot 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 at least 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 final 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 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 during cold weather 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 (cold 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.

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

[[Page 42992]]

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 
remains 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 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. Please see 
the discussion in the Section-by-Section Analysis for Sec.  213.119(c) 
to see the options that FRA gives track owners to strengthen a joint by 
relieving the tensile forces that it endures.
    The Working 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. Response to Public Comment

    FRA received comments from the American Association for Justice, 
AAR, BMWED, Metra, and NTSB during the public comment period for the 
NPRM. FRA has reviewed and analyzed each issue brought up by the 
comments, which the agency will address in this discussion and in the 
final rule text.

Preemption

    The American Association for Justice (AAJ) commented that FRA 
should revise its section entitled ``Executive Order 13132'' to delete 
any language regarding the preemption of State common law claims. AAJ 
stated that, contrary to the agency's assertions, the former Federal 
Railroad Safety Act of 1970 (FRSA) does not authorize the preemption of 
State common law claims. AAJ claimed that FRA regulations have never 
lawfully preempted State law claims. The petition also stated that 
Congress reiterated its intent to preserve State tort claims against 
negligent railroads. Finally, AAJ argued that agency rules must clearly 
follow the FRSA's limited preemption language, and that State common 
law should govern railroad safety issues.
    Contrary to AAJ's claim, FRA's Federalism Statement correctly 
recites that the rule preempts State common law standards of care. The 
Supreme Court has spoken clearly on the subject of preemption State 
common law by 49 U.S.C. 20106 (Section 20106). The question was 
squarely presented to the Court in CSX Transp., Inc. v. Easterwood, 507 
U.S. 658 (1993), in which one of the respondent's claims was that, 
despite FRA's track standards (49 CFR part 213) which permit a maximum 
speed of 60 m.p.h. over the class four track involved in the case and 
train speed at the collision below 60 m.p.h., ``petitioner [CSX] 
breached its common-law duty to operate its train at a moderate and 
safe rate of speed.'' Id. at 673. The Court's answer was ``[w]e hold 
that, under the FRSA, Federal regulations adopted by the Secretary of 
Transportation pre-empt respondent's negligence action only insofar as 
it asserts that petitioner's train was traveling at an excessive 
speed.'' Id. at 676. In reaching that judgment, the Court reasoned that 
``[a]ccording to Sec.  [20106], applicable Federal regulations may pre-
empt any State `law, rule, regulation, order, or standard relating to 
railroad safety.' Legal duties imposed on railroads by the common law 
fall within the scope of these broad phrases.'' Id. at 664. The Supreme 
Court very plainly held that the State common-law standard of care was 
preempted by FRA's Track Safety Standards, but that the underlying 
negligence action was not. That is completely in accord with the 
amendment Congress enacted to Section 20106 in section 1528 of the 
Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 
Commission Act of 2007).
    The Supreme Court's interpretation of Section 20106 was confirmed 
and further explained in a subsequent case also involving a grade 
crossing wreck, but alleging that the railroad negligently failed to 
maintain adequate warning devices at the grade crossing in question. 
The Supreme Court held:

    Sections 646.214(b)(3) and (4) [the Federal Highway 
Administration regulations mandating the installation of particular 
warning devices when certain conditions exist] ``cover the subject 
matter'' of the adequacy of warning devices installed with the 
participation of Federal funds. As a result, the FRSA pre-empts 
respondent's State tort claim that the advance warning signs and 
reflectorized crossbucks installed at the Oakwood Church Road 
crossing were inadequate. Because the TDOT used Federal funds for 
the signs' installation, Sec. Sec.  646.214(b)(3) and (4) governed 
the

[[Page 42993]]

selection and installation of the devices. And because the TDOT 
determined that warning devices other than automatic gates and 
flashing lights were appropriate, its decision was subject to the 
approval of the FHWA. See Sec.  646.214(b)(4). Once the FHWA 
approved the project and the signs were installed using Federal 
funds, the Federal standard for adequacy displaced Tennessee 
statutory and common law addressing the same subject, thereby pre-
empting respondent's claim.

Norfolk Southern Ry. Co. v. Shanklin, 529 U.S. 344, 358-359 (2000). It 
could not be clearer that, before Congress amended Section 20106 in 
2007, it provided for preemption of State common law by DOT 
regulations.
    Congress was moved to amend Section 20106 by two court cases, 
Lundeen v. Canadian Pacific Ry. Co., 507 F.Supp.2d 1006 (D.Minn. 2007), 
and Mehl v. Canadian Pacific Ry., Ltd., 417 F.Supp.2d 1104 (D.N.D. 
2006), which left without a legal remedy tort plaintiffs injured in a 
hazardous material release from a train wreck in Minot, North Dakota. 
The judge's opinion in Lundeen said:

    Preemption bars private claims for FRA violations. Congress has 
given the Secretary of Transportation ``exclusive authority'' to 
impose civil penalties and request injunctions for violations of the 
railroad safety regulations. \FN4\ 49 U.S.C. 20111(a); Abate v. S. 
Pac. Transp. Co., 928 F.2d 167, 170 (5th Cir. 1991) (``The structure 
of the FRSA indicates that Congress intended to give Federal 
agencies, not private persons, the sole power of enforcement.'').
    FN4. The single exception to the Secretary's exclusive authority 
exists when the Federal government fails to act promptly. In such 
cases, State government agencies can file suit, impose penalties, or 
seek injunctions. 49 U.S.C. 20113.
    Indeed, the FRSA has ``absolved railroads from any common law 
liability for failure to comply with the safety regulations.'' Mehl, 
417 F.Supp.2d at 1120. This is the regulatory scheme which Congress 
has imposed. And when Congress has clearly spoken, any relief from 
its regime must come from Congress rather than the Courts. Private 
actions against railroads based on Federal regulations are 
preempted.

Lundeen, supra at 1016.

    The amendment to Section 20106 made by section 1528 of the 9/11 
Commission Act of 2007 did not change the text the Supreme Court had 
interpreted. Instead, Congress enacted a very precise cure for the 
problem presented by Lundeen and Mehl by amending Section 20106 to 
renumber the then-existing language as subsection (a), and adding two 
new subsections as follows:
    (b) Clarification regarding State law causes of action.--(1) 
Nothing in this section shall be construed to preempt an action under 
State law seeking damages for personal injury, death, or property 
damage alleging that a party--
    (A) Has failed to comply with the Federal standard of care 
established by a regulation or order issued by the Secretary of 
Transportation (with respect to railroad safety matters), or the 
Secretary of Homeland Security (with respect to railroad security 
matters), covering the subject matter as provided in subsection (a) of 
this section;
    (B) Has failed to comply with its own plan, rule, or standard that 
it created pursuant to a regulation or order issued by either of the 
Secretaries; or
    (C) Has failed to comply with a State law, regulation, or order 
that is not incompatible with subsection (a)(2).
    (2) This subsection shall apply to all pending State law causes of 
action arising from events or activities occurring on or after January 
18, 2002.
    (c) Jurisdiction.--Nothing in this section creates a Federal cause 
of action on behalf of an injured party or confers Federal question 
jurisdiction for such State law causes of action.
    New subsection (b) clarifies that, as the Supreme Court held in 
Easterwood, regulations or orders issued by the Secretary of 
Transportation preempt the State standard of care, but not the 
underlying cause of action in tort, thereby preserving the ability of 
injured parties to seek redress in court.
    Since FRA's Track Safety Standards (49 CFR part 213) were involved 
in both Easterwood and Lundeen, they are especially apt for 
illuminating FRA's interpretation of the amended statute. The Track 
Safety Standards substantially subsume the subject matters of standards 
for railroad track and train speeds over it and, therefore, preempt 
State standards, both statutory and common law, pertaining to those 
subjects. Nevertheless, under Section 20106(b)(1)(A), a private 
plaintiff may bring a tort action for damages alleging injury as a 
result of violation of the Track Safety Standards, such as train speed 
exceeding the maximum speed permitted under 49 CFR 213.9 over the class 
of track being traversed. Similarly, under Section 20106(b)(1)(B), a 
private plaintiff may bring a tort action for damages alleging injury 
as a result of violation of a railroad's CWR plan required by the Track 
Safety Standards (the key issue in Lundeen). Provisions of a railroad's 
CWR plan which exceed the requirements of this part are not included in 
the Federal standard of care. Under Section 20106(b)(1)(C), a private 
plaintiff may bring a tort action for damages alleging injury as a 
result of violation of a State law, regulation, or order that is not 
incompatible with subsection (a)(2), such as Ohio's regulation of 
minimum track clearances in rail yards found not to be preempted in 
Tyrrell v. Norfolk Southern Ry. Co., 248 F.3d 517 (6th Cir. 2001).
    It is a settled principle of statutory construction that, if the 
statute is clear and unambiguous, it must be applied according to its 
terms. Carcieri v. Salazar, 555 U.S.--(2009). Read by itself, Section 
20106(a) preempts State standards of care, but does not expressly state 
whether anything replaces the preempted standards of care for purposes 
of tort suits. The focus of that provision is clearly on who regulates 
railroad safety: The Federal government or the States. It is about 
improving railroad safety, for which Congress deems nationally uniform 
standards to be necessary in the great majority of cases. That purpose 
has collateral consequences for tort law which new Section 20106 
subsections (b) and (c) address. New subsection (b)(1) creates three 
exceptions to the possible consequences flowing from subsection (a). 
One of those exceptions ((b)(1)(B)) precisely addresses an issue 
presented in Lundeen Congress wished to rectify: it allows plaintiffs 
to sue a railroad in tort for violation of its own plan, rule, or 
standard that it created pursuant to a regulation or order issued by 
either of the Secretaries. That provision satisfies the arguments made 
in the Petition concerning the State tort claims Congress intended to 
preserve. None of those exceptions covers a plan, rule, or standard 
that a regulated entity creates for itself in order to produce a higher 
level of safety than Federal law requires, and such plans, rules, or 
standards were not at issue in Lundeen. The key concept of Section 
20106(b) is permitting actions under State law seeking damages for 
personal injury, death, or property damage to proceed using a Federal 
standard of care. A plan, rule, or standard that a regulated entity 
creates pursuant to a Federal regulation logically fits the paradigm of 
a Federal standard of care--Federal law requires it and determines its 
adequacy. A plan, rule, or standard, or portions of one, that a 
regulated entity creates on its own in order to exceed the requirements 
of Federal law does not fit the paradigm of a Federal standard of 
care--Federal law does not require it and, past the point at which the 
requirements of Federal law are satisfied, says nothing about its 
adequacy. That is why FRA believes Section 20106(b)(1)(B) covers the 
former, but not the latter. The basic purpose of the statute--improving 
railroad safety--is best served by encouraging regulated entities to do 
more than the law requires and would

[[Page 42994]]

be disserved by increasing the potential tort liability of regulated 
entities that choose to exceed Federal standards, which would 
discourage them from ever exceeding Federal standards again.
    In this manner, Congress adroitly preserved its policy of national 
uniformity of railroad safety regulation expressed in Section 
20106(a)(1) and assured plaintiffs in tort cases involving railroads, 
such as Lundeen, of their ability to pursue their cases by clarifying 
that Federal railroad safety regulations preempt the standard of care, 
not the underlying causes of action in tort. Under this interpretation, 
all parts of the statute are given meanings that work together 
effectively and serve the safety purposes of the statute. Because the 
language of the statute is clear, there is no need to resort to the 
legislative history to properly interpret the statute. See Ratzlaf v. 
United States, 510 U.S. 135, 147-148 (1994) (``[W]e do not resort to 
legislative history to cloud a statutory text that is clear'').

Disapproval of CWR plans

    BMWED strongly argued that it believes that FRA should disapprove, 
for cause stated, CWR plans within a specific time period so as not to 
allow a non-conforming plan to remain in effect for an extended period 
of time. Should manpower at FRA be an impediment to incorporating such 
specific time frames for disapproval of all track owners' CWR plans, 
BMWED argues that FRA should, at a minimum, adopt its suggested time 
frame of review of 5 months for Class I railroads, 10 months for Class 
II railroads, and 15 months for Class III railroads.
    FRA appreciates BMWED's concerns, and has developed a good solution 
to this issue. FRA decided to have this final rule effective at 
different dates based on the Class of railroad. This final rule is 
effective 45 days after the publication date for Class I railroads, 90 
days after the publication date for Class II railroads, and 180 days 
after the publication date for Class III railroads. Also, FRA has 
developed a new section, 213.118, which more clearly outlines FRA's 
plan review and approval process. Please see the extensive discussion 
on this section below.

CWR Joint Bolt Requirements

    The AAR is not in favor of including Sec.  213.119(c), which 
describes CWR joint installation and maintenance procedures, contending 
that its inclusion robs the industry of necessary future flexibility. 
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. The AAR members in the 
Working Group also argued this point during the meetings, stating that 
including this paragraph constituted ``regulatory creep.'' BMWED, on 
the other hand, agreed with the proposed text. 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 in this paragraph. FRA also notes that the 
maintenance procedures 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.
    The BMWED mentioned that Sec.  213.119(c)(3) should specify 
``bar(s)'' instead of ``bar.'' FRA agrees with this assessment and has 
changed the final rule text accordingly. FRA has also elected to 
slightly revise the text to make the requirements more uniform.

Rail Neutral Temperature

    In its comment, Metra argues that hunting,\3\ a significant source 
for imposed dynamic lateral loading, typically occurs in lightly loaded 
commuter cars at about 60 mph in contrast to the typical onset of 
hunting in freight cars at about 40 mph. The commenter suggests that, 
for passenger and commuter trains, ``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 reducing the speed by one class of track 
or operate at 40 mph, whichever was greater, in conjunction with a 
daily inspection of the rail made during the heat of the day.'' Thus, 
commuter railroads would reduce speed to 60 mph for passenger 
operations and inspect the location during the heat of the day or 
otherwise have to reduce the speed to 25 mph if the inspection could 
not be done during the heat of the day.
---------------------------------------------------------------------------

    \3\ Truck hunting is a rapid oscillation of a car truck usually 
occurring at speeds in excess of 45 miles per hour in cars that are 
empty or lightly loaded, where the flanges tend to ride up on the 
head of the rail.
---------------------------------------------------------------------------

    FRA responds that, while this is an important issue, it is not one 
that the agency has chosen to cover in the final regulatory text. The 
issue was mentioned in FRA's preamble discussion of the NPRM as an 
example of a technical issue that the Working Group discussed. FRA 
highlighted this issue as one that the agency would take into 
consideration when reviewing CWR plans. Pursuant to Sec.  213.119(f), 
the track owner must describe in its plan procedures which govern train 
speed on CWR track when maintenance work, track rehabilitation, track 
construction, or any other event occurs which disturbs the roadbed or 
ballast section and reduces the lateral or longitudinal resistance of 
the track, and the difference between the average rail temperature and 
the average rail neutral temperature is in a range that causes 
buckling-prone conditions to be present at a specific location. FRA 
instructs all track owners to specifically describe in their plans how 
they intend to do this. FRA will review all plans for compliance with 
Sec.  213.119(f).

Inspection Interval

    AAR proposes that FRA return to the ``intent of the current 
regulations and RSAC's intent by requiring railroads to specify when 
inspections should occur due to ambient temperature.'' AAR argues that 
FRA offers no explanation of why it proposes to require railroads to 
specify an inspection interval at Sec.  213.119(g)(2) or what it 
expects railroads to do to comply with such a requirement. FRA 
understands the confusion that the wording in the NPRM could have 
caused. Therefore, FRA has slightly modified the text in response to 
AAR's comment. The final rule states that the plan must ``specify when 
the inspections will be conducted.''

Fracture Reports

    NTSB noted that a track owner must generate a Fracture Report for 
every cracked or broken CWR joint bar and conduct special inspections 
to locate the defective joint bar. The track owner then sends this data 
to FRA for review and analysis so that FRA can assess the validity of 
joint bar inspections and determine their proper frequency or 
adjustment. NTSB is concerned that, after February 10, 2010, a track 
owner may petition FRA to conduct a technical conference to review the 
Fracture Report data and to assess whether there is a continued need 
for the collection of data. NTSB is concerned that FRA may authorize 
track owners to discontinue collecting fracture data that could help 
evaluate whether a railroad's CWR plan adequately addresses problematic 
joints. NTSB argues that the collection and assessment of fracture data 
are important and should continue.
    FRA appreciates NTSB's concern with regard to the importance of 
Fracture

[[Page 42995]]

Reports, and also notes that FRA did not change the requirement of 
Fracture Reports with this final rule. Indeed, a track owner must 
continue to submit a Fracture Report to FRA for every cracked or broken 
CWR joint bar that is discovered during the course of an inspection 
pursuant to Sec. Sec.  213.119(h), 213.233 or 213.235 on track that is 
required under Sec.  213.119(h)(6)(i) to be inspected. FRA believes 
that NTSB's concern is premature for purposes of this rulemaking. FRA 
advises that the appropriate time to bring forth this concern would be 
at a technical conference called by FRA to assess whether there is a 
continued need for the collection of Fracture Report data.

Additional Comments

    NTSB pointed out that, under Sec.  213.119, a track owner could 
submit one plan to FRA, but then operate using a more restrictive plan. 
NTSB strongly argued that allowing a track owner to operate with two 
sets of CWR plans was not in the best interest of safety. Although FRA 
agrees with NTSB's comment that it is confusing to have two standards, 
FRA points out that the Track Safety Standards are minimum standards, 
and that the track owner is free to voluntarily follow more restrictive 
standards as a best practice.
    AAR proposed that FRA eliminate the text at the end of Sec.  
213.121(f), which states that ``locations when over 400 feet in length 
(with no-slip, joint-to-rail contact), are considered to be continuous 
welded rail track and shall meet all the requirements for continuous 
welded rail track prescribed in this part.'' FRA has always considered 
no-slip joint-to-rail contact designed joints to not be a break in rail 
continuity, and thus be defined as CWR. To avoid any confusion on this 
issue, FRA has elected to leave this portion of Sec.  213.121(f) 
intact.
    AAR also proposed that FRA delete the last sentence in Sec.  
213.119(k), which requires that CWR procedures be ``maintained in one 
engineering standards and procedures manual.'' AAR claimed that it is 
not necessary to have all engineering standards and procedures in one 
document, but agrees that there is a benefit to having all CWR 
standards and procedures in one document. FRA agrees with this concern, 
and has changed the text to specify that CWR procedures be ``maintained 
in one CWR standards and procedures manual.''

Errata

    Multiple commenters pointed out that the table at Sec.  
213.119(h)(6) contains inadvertent errors, which FRA has corrected with 
this final rule.

VI. Section-by-Section Analysis

Section 213.7 Designation of Qualified Persons to Supervise Certain 
Renewals and Inspect Track

    FRA is revising Sec.  213.7 principally by adding a new paragraph 
(c), which creates 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. This 
paragraph 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) will 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 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 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 paragraph (c)(4) as ``recorded'' instead of written; 
therefore, track owners will have the flexibility to test an 
individual's knowledge how they best see fit. However, it should be 
noted that the results of the examination must be recorded so that FRA 
may inspect the basis for the qualification of an individual under 
paragraph (c).
    In adding paragraph (c) to this section, FRA is redesignating 
former paragraphs (c) and (d) as paragraphs (d) and (e), respectively. 
FRA is also making conforming changes to these paragraphs to cross-
reference the new paragraph (c), in the same way that the former 
paragraphs of this section are cross-referenced. Although FRA is 
setting out the entire text of these paragraphs for clarity, the 
changes to the redesignated paragraphs 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).

[[Page 42996]]

Section 213.118 Continuous Welded Rail (CWR); Plan Review and Approval

    FRA is amending the Track Safety Standards by adding new Sec.  
213.118. FRA determined to cover the plan review and approval process 
in Sec.  213.118, and the required contents of the plan in Sec.  
213.119. This section delineates the process for submitting a CWR plan 
for approval to FRA.
    Paragraph (a). In this paragraph, FRA requires that each track 
owner with track constructed of CWR must have in effect and comply with 
a plan that contains written procedures which address: The 
installation, adjustment, maintenance, and inspection of CWR; 
inspection of CWR joints; and a training program for the applications 
of those procedures. This paragraph is based on the text that formerly 
appeared at Sec.  213.119. FRA has not changed the substance of this 
requirement.
    Paragraph (b). In this paragraph, FRA explains that the track owner 
must file its CWR plan with the FRA Associate Administrator for 
Railroad Safety/Chief Safety Officer (``Associate Administrator''). 
Within 30 days of receipt of the submission, FRA will review the plan 
for compliance with this subpart. FRA will approve, disapprove or 
conditionally approve the submitted plan, and will provide written 
notice of its determination. 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 previous text did 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 clarifying that a track owner must file its CWR plan with the 
FRA Associate Administrator 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.
    In this paragraph, FRA decided that a plan may also be 
conditionally approved. FRA recognizes that there might be instances 
where it would be beneficial for the agency to conditionally approve a 
plan. For example, the agency might decide that a plan should be 
approved, but might need to look into new technology proposed in the 
plan. It is FRA's intent to later approve or disapprove a plan that it 
conditionally approves. FRA also intends to notify the track owner of a 
conditionally approved plan of the time that the agency anticipates it 
will require in order to make a final determination. So that FRA does 
not stall the implementation of a plan that would otherwise be 
approved, FRA has decided to allow a plan to be conditionally approved.
    Paragraph (c). In this paragraph, FRA states that the track owner's 
existing plan shall remain in effect until the track owner's new plan 
is approved or conditionally approved and is effective pursuant to 
paragraph (d). In the Working Group discussions, it was brought up that 
FRA had previously been unclear in what plan would be in effect while 
FRA reviewed a new plan. In this new paragraph, FRA clarifies that the 
track owner's existing plan is to remain in effect until the new plan 
is approved or conditionally approved and is in effect.
    Paragraph (d). In this paragraph, FRA states that the track owner 
must, upon receipt of FRA's approval or conditional approval, establish 
the plan's effective date. The paragraph also requires that the track 
owner advise, in writing, FRA and all affected employees of the 
effective date. FRA decided to promulgate this provision because track 
owners have expressed to FRA that they needed time to implement a plan 
once FRA has approved it. Indeed, FRA recognizes the time and effort 
that it takes to issue a new CWR plan, and wants to ensure that track 
owners have the time to do this once a new CWR plan is approved by FRA. 
Therefore, FRA has decided to let the track owner establish an 
effective date of its approved or conditionally approved CWR plan 
provided that FRA and all affected employees are advised of the 
effective date in writing.
    Paragraph (e). In this paragraph, for cause stated, FRA may, 
subsequent to plan approval or conditional approval, require revisions 
to the plan to bring the plan into conformity with this subpart. Notice 
of a revision requirement shall be made in writing and specify the 
basis of F