[Federal Register Volume 76, Number 63 (Friday, April 1, 2011)]
[Rules and Regulations]
[Pages 18073-18087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7666]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

[Docket No. FRA-2009-0007, Notice No. 2]
RIN 2130-AC01


Track Safety Standards; Concrete Crossties

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 track constructed with concrete 
crossties. In particular, FRA is mandating specific requirements for 
effective concrete crossties, for rail fastening systems connected to 
concrete crossties, and for automated inspections of track constructed 
with concrete crossties.

DATES: This final rule is effective on July 1, 2011.

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 Chief Counsel, FRA, 1200 New Jersey Avenue, SE., 
Washington, DC 20950 (telephone: (202) 493-6390).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Concrete Crossties Overview
    A. Derailment in 2005 near Home Valley, Washington
    B. General Factual Background on Concrete Crossties
    C. Statutory Mandate for this Rulemaking
II. Overview of FRA's Railroad Safety Advisory Committee (RSAC)
III. RSAC Track Safety Standards Working Group
IV. FRA's Approach to Concrete Crossties
    A. Rail Cant
    B. Automated Inspections
V. Response to Public Comment
VI. Section-by-Section Analysis
VII. Regulatory Impact and Notices
    A. Executive Orders 12866 and 13563 and DOT Regulatory Policies 
and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Environmental Impact
    E. Federalism Implications
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Privacy Act Statement

I. Concrete Crossties Overview

A. Derailment in 2005 Near Home Valley, Washington

    On April 3, 2005, a National Railroad Passenger Corporation 
(Amtrak) passenger train traveling at 60 miles per hour on the BNSF 
Railway Company's (BNSF) line through the Columbia River Gorge (near 
Home Valley, Washington) derailed on a 3-degree curve. According to the 
National Transportation Safety Board (NTSB), 30 people sustained 
injuries. Property damage totaled about $854,000. See NTSB/RAB-06-03. 
According to the NTSB, the accident was caused in part by excessive 
concrete crosstie abrasion, which allowed the outer rail to rotate 
outward and create a wide gage track condition. This accident 
illustrated the potential for track failure with subsequent derailment 
under conditions that might not be readily evident in a normal visual 
track inspection. Conditions giving rise to this risk may include 
concrete tie rail seat abrasion, track curvature, and operation of 
trains through curves at speeds leading to unbalance (which is more 
typical of passenger operations). Subsequently, this accident also 
called attention to the need for clearer and more appropriate 
requirements for concrete ties, in general. This final rule addresses 
this complex set of issues as further described below.

B. General Factual Background on Concrete Crossties

    Traditionally, crossties have been made of wood, but due to 
improved continuous welded rail processes, elastic fastener technology, 
and concrete prestressing techniques, the use of concrete crossties is 
widespread and growing. On major railroads in the United States, 
concrete crossties make up an estimated 20 percent of all installed 
crossties. A major advantage of concrete crossties is that they 
transmit imposed wheel loads better than traditional wood crossties, 
although they are susceptible to stress from high-impact loads. Another 
advantage of concrete crossties over wood ties is that temperature 
change has little effect on concrete's durability, and concrete ties 
often provide better resistance from track buckling.
    There are, however, situations that can negatively impact a 
concrete crosstie's effectiveness. For example, in wet climates, 
eccentric wheel loads and non-compliant track geometry can cause high-
concentrated non-uniform dynamic loading, usually toward the field-side 
of the concrete rail base. This highly-concentrated non-uniform dynamic 
loading puts stress on the crosstie that can lead to the development of 
a failure. Additionally, repeated wheel loading rapidly accelerates 
rail seat deterioration where the padding material fails and the rail 
steel is in direct contact with the concrete. The use of automated 
technology can help inspectors ensure rail safety on track constructed 
of concrete crossties. While wood and concrete crossties differ 
structurally, they both must still support the track in compliance with 
the Federal Track Safety Standards (49 CFR part 213).
    The use of concrete crossties in the railroad industry, either 
experimentally or under revenue service, dates back to 1893. The first 
railroad to use concrete crossties was the Philadelphia and Reading 
Company in Germantown, PA.\1\ In 1961, the Association of American 
Railroads (AAR) \2\ carried out comprehensive laboratory and field 
tests on prestressed concrete crosstie performance. Replacing timber 
crossties with concrete crossties on a one-to-one basis at 19\1/2\-inch 
spacing proved acceptable based on engineering performance, but was 
uneconomical.
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    \1\ J.W. Weber, ``Concrete crossties in the United States,'' 
International Journal Prestressed Concrete, Vol. 14 No. 1, February 
1969.
    \2\ ``Prestressed concrete crosstie investigation,'' AAR, 
Engineering research division, Report No. ER-20 November 1961; and 
G.M. Magee and E. J. Ruble, ``Service Test on Prestressed Concrete 
Crossties,'' Railway Track and Structures, September 1960.
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    Increasing crosstie spacing from the conventional 20 inches to 30 
inches increased the rail bending stress and the load that each 
crosstie transmitted to the ballast; however, the increased rail 
bending stress was within design limits. Further, by increasing the 
crosstie base to 12 inches, the pressure transmitted from crosstie to 
ballast section was the same as for timber crossties. Thus, by 
increasing the spacing of the crossties while maintaining rail, 
crosstie, and ballast stress at acceptable levels, the initial research 
showed that fewer concrete crossties than timber crossties could be 
used, making the application of concrete crossties a possible 
economical alternative to timber crossties.
    Early research efforts in the 1960s and 1970s were focused on the 
strength characteristics of concrete crossties, i.e., bending at the 
top center and at the bottom of the crosstie under the rail seat or the 
rail-crosstie interface, and material optimization such as aggregate 
and prestressing tendons and concrete

[[Page 18074]]

failure at the rail-crosstie and ballast-crosstie interface. Renewed 
efforts regarding the use of concrete crossties in the United States in 
the 1970s were led by a major research effort to optimize crosstie 
design at the Portland Cement Association Laboratories (PCA).
    The PCA's research included the use of various shapes, sizes, and 
materials to develop the most economically desirable concrete crosstie 
possible. Extensive use of concrete crossties by railroads all over the 
world since the 1970s indicates that concrete crossties are an 
acceptable design alternative for use in modern track. Test sections on 
various railroads were set up in the 1970s to evaluate the performance 
of concrete crossties. Such installations were on the Alaska Railroad, 
Chessie System, The Atchison, Topeka and Santa Fe Railway Company, the 
Norfolk and Western Railway Company, and the Facility for Accelerated 
Service Testing (FAST) in Pueblo, Colorado.\3\
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    \3\ T.Y. Lin, ``Design of Prestressed Concrete Structures,'' 
Third Edition, John Wiley & Sons.
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    During the 1970s, PCA addressed several of the initial concrete 
design problems, including quality control issues and abrasion. 
Abrasion, or failure of the concrete surface between the rail and 
crossties, became apparent when large sections of track were converted 
to concrete crossties, especially on high-curvature and high-tonnage 
territories. This phenomenon, commonly termed ``rail seat abrasion,'' 
was noted in one form or another on four major railroads in North 
America (or their predecessors): Canadian Pacific Railway (CP); 
Canadian National Railway (CN); BNSF; and Union Pacific Railroad 
Company (UP).\4\ CN's concrete crosstie program started in 1976, and 
researchers noted that rail seat abrasion was generally less than 0.2 
inches by 1991. In a few cases, particularly on curved track, rail seat 
abrasion of as much as 1 inch has been noted. In the majority of cases, 
especially on tangent or light curvature track, rail seat abrasion was 
uniform across the rail seat. BNSF started its program in 1986 and 
noted the same pattern of abrasion as CN with most of the abrasion 
occurring on curves. At CP, rail seat abrasion was present on 5-degree 
curves, and CP used a bonded pad to reduce rail seat abrasion. CP's 
experience indicated that evidence of abrasion appeared shortly after 
failure of the bonded pad. At other locations where test sites were set 
up under less severe environments, concrete crossties were installed 
with no apparent sign of rail seat abrasion.
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    \4\ Albert J. Reinschmidt, ``Rail-seat abrasion: Causes and the 
search for the cure,'' Railway Track and Structures, July 1991.
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    Mechanisms that lead to rail seat abrasion include the development 
of an abrasive slurry between the rail pad and the concrete crosstie. 
Slurry is made up of various materials including dust particles, fine 
material from the breakdown of the ballast particles, grinding debris 
from rail grinders, and sand from locomotive sanding or blown by the 
wind in desert areas of the southwest. This slurry, driven by the rail 
movement, abrades the concrete surface and leaves the concrete 
aggregate exposed, generating concentrated forces on the rail pads. 
This abrasion process is accelerated once the pad is substantially 
degraded and the rail base makes direct contact with the concrete 
crosstie.
    Recently, a new form of rail seat abrasion, which is believed to be 
attributable to excessive compression forces on the rail seat area, was 
noted on high-curvature territory. The wear patterns in these locations 
have a triangular shape when viewed from the side of the crosstie. 
These wear patterns are similar in shape to the rail seat pressure 
distribution calculated when a vertical load and overturning moment are 
applied. The high vertical and lateral forces applied to the high rail 
by a curving vehicle provide such a vertical load and an overturning 
moment that loads the rail base unevenly.
    Anecdotal evidence indicates that once this triangular shape wear 
pattern develops and moves beyond the two-thirds point of the rail 
seat, as referenced from the field side, a high negative cant is 
created, leading to high compressive forces on the field side. These 
forces are high even in the absence of an overturning moment since the 
rail is now bearing on only a fraction of the original bearing area. 
Further, it is believed that once the rail seat wears to this 
triangular shape, the degradation rate is accelerated due to the high 
compressive forces.
    It is apparent that at this time, elimination of rail seat abrasion 
in existing concrete crossties would be difficult in areas with severe 
operating conditions. Thus, mitigation of the problem on new or 
existing crossties is required. For new crosstie construction, it is 
possible to focus research efforts on strengthening the rail seat area 
with use of high-strength concrete or with embedding a steel plate at 
the time new crossties are cast. Both options have a high probability 
of success, but could render concrete crossties uneconomical.
    Modern concrete crossties are designed to accept the stresses 
imposed by irregular rail head geometry and loss, excessive wheel 
loading caused by wheel irregularities (out of round), excessive 
unbalance speed, and track geometry defects. In developing the 
regulatory text, FRA considered the worst combinations of conditions, 
which can cause excessive impact and eccentric loading stresses that 
would increase failure rates. FRA also considered other measures in the 
requirements concerning loss of toeload and longitudinal and lateral 
restraint, in addition to improper rail cant.

C. Statutory Mandate To Conduct This Rulemaking

    On October 16, 2008, the Rail Safety Improvement Act of 2008 (Pub. 
L. 110-432, Division A) (RSIA) was enacted. Section 403(d) of RSIA 
states that ``[n]ot later than 18 months after the date of enactment of 
this Act, the Secretary shall promulgate regulations for concrete cross 
ties. In developing the regulations for class 1 through 5 track, the 
Secretary may address, as appropriate--(1) Limits for rail seat 
abrasion; (2) concrete cross tie pad wear limits; (3) missing or broken 
rail fasteners; (4) loss of appropriate toeload pressure; (5) improper 
fastener configurations; and (6) excessive lateral rail movement.'' The 
Secretary delegated his responsibilities under RSIA to the 
Administrator of FRA. See 49 CFR 1.49(oo). On August 26, 2010, FRA 
issued a Notice of Proposed Rulemaking (NPRM) as a first step to the 
agency's promulgation of concrete crosstie regulations per the mandate 
of the RSIA. See 75 FR 52490. This final rule is the culmination of 
FRA's efforts to develop and promulgate concrete crosstie standards. In 
the Section-by-Section Analysis, below, FRA will discuss how the 
regulatory text addresses each portion of the RSIA mandate.
    Regulations governing the use of concrete crossties previously 
addressed only high-speed rail operations (Class 6 track and above).\5\ 
For track Classes 1-5 (the lower speed classes of track), concrete 
crossties had been treated, from the regulatory aspect, as timber 
crossties. While this approach works well for the major concerns with 
concrete crossties, it does not address the critical issue of rail seat 
abrasion. Existing regulations also do not address the longitudinal 
rail restraint provided by concrete crossties, which is different than 
the restraint provided by timber crossties. This final rule addresses 
these shortcomings and establishes new methodologies for inspection.
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    \5\ See 49 CFR 213.335(d).

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[[Page 18075]]

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

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

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

    *Indicates associate, non-voting membership.

    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If the 
task is accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. A working group may establish one or more 
task forces to develop facts and options on a particular aspect of a 
given task. The task force then provides that information to the 
working group for consideration.
    If a working group comes to a unanimous consensus on 
recommendations for action, the proposal is presented to the full RSAC 
for a vote. If the proposal is accepted by a simple majority of RSAC, 
the proposal is formally recommended to FRA. FRA then determines what 
action to take on the recommendation. Because FRA staff members play an 
active role at the working group level in discussing the issues and 
options and in drafting the language of the consensus proposal, FRA is 
often favorably inclined toward the RSAC recommendation.
    However, FRA is in no way bound to follow the recommendation, and 
the agency exercises its independent judgment on whether 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 will proceed to resolve 
the issue through traditional rulemaking proceedings.

III. RSAC Track Safety Standards Working Group

    The Track Safety Standards Working Group (Working Group) was formed 
on February 22, 2006. On October 27, 2007, the Working Group formed two 
subcommittees: the Rail Integrity Task Force and the Concrete Crosstie 
Task Force (CCTF). Principally in response to NTSB recommendation R-06-
19,\6\ the Working Group directed the CCTF to consider improvements in 
the Track Safety Standards related to fastening of rail to concrete 
crossties. The Working Group specified that the CCTF do the following: 
(1) Provide background information regarding the amount and use of 
concrete crossties in the U.S. rail network; (2) review minimum safety 
requirements in the Federal Track Safety Standards for crossties at 49 
CFR 213.109 and 213.335, as well as relevant American Railway 
Engineering and Maintenance-of-Way Association (AREMA) concrete 
construction specifications; (3) understand the science (mechanical and 
compressive forces) of rail seat failure on concrete ties; (4) develop 
a performance specification for all types of crosstie material for FRA 
Class 2 through 5 main line track; (5) develop specifications for 
missing or broken concrete fastener and crosstie track structure 
components and/or establish wear limits for rail seat deterioration and 
rail fastener integrity; and (6) develop manual and automated methods 
to detect rail seat failure on concrete ties.
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    \6\ NTSB recommended that FRA ``[e]xtend[,] to all classes of 
track[,] safety standards for concrete crossties that address at a 
minimum the following: limits for rail seat abrasion, concrete 
crosstie pad wear limits, missing or broken rail fasteners, loss of 
appropriate toeload pressure, improper fastener configurations, and 
excessive lateral rail movement.'' NTSB Safety Recommendation R-06-
19, dated October 25, 2006.
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    The CCTF met on November 26-27, 2007; February 13-14, 2008; April 
16-17, 2008; July 9-10, 2008; and November 19-20, 2008. The CCTF's 
findings were reported to the Working Group on November 19, 2008. The 
Working Group reached a consensus on the majority of the CCTF's work 
and forwarded a proposal to RSAC on December 10, 2008. RSAC voted to 
approve the Working Group's recommended text, which provided the basis 
of the NPRM.
    In addition to FRA staff, the members of the Working Group include 
the following:

AAR, including members from BNSF, CN, CP, CSX Transportation, Inc., The 
Kansas City Southern Railway Company, Norfolk Southern Railway Company, 
and UP;
Amtrak;
APTA, including members from Port Authority Trans-Hudson Corporation, 
LTK Engineering Services, Northeast Illinois Regional Commuter Railroad 
Corporation (Metra), and Peninsula Corridor Joint Powers Board 
(Caltrain);
ASLRRA (representing short line and regional railroads);
BLET;
BMWED;

[[Page 18076]]

BRS;
Transportation Technology Center, Inc.; and
UTU.

    Staff from the Department of Transportation's John A. Volpe 
National Transportation Systems Center attended all of the meetings and 
contributed to the technical discussions. In addition, NTSB staff 
attended all of the meetings and contributed to the discussions as 
well.
    As FRA received only three public comments on the NPRM, the agency 
decided not to seek the assistance of the Working Group to respond to 
the comments and formulate this final rule. Due to the lack of major 
changes in response to public comment, this final rule is also based 
upon the Working Group's recommended text provided at the NPRM stage of 
this proceeding. FRA has greatly benefited from the open, informed 
exchange of information during the meetings. There is a general 
consensus among railroads, rail labor organizations, State safety 
managers, and FRA concerning the primary principles that FRA sets forth 
in this final rule. 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 addressed in the final rule. The Working Group could not reach 
consensus on a single technology or methodology to measure the rail 
seat deterioration on concrete ties. Also, the group debated over 
whether or not the revised standards should contain language to 
accommodate the present technology. FRA will address its response to 
public comment on this particular issue in the Response to Public 
Comment section, below.

IV. FRA's Approach to Concrete Crossties

    In this final rule, FRA is establishing standards for the 
maintenance of concrete crossties in track Classes 1 through 5. 
Specifically, FRA is establishing limits for rail seat abrasion, 
concrete crosstie pad wear limits, missing or broken rail fasteners, 
loss of appropriate toeload pressure, improper fastener configuration, 
and excessive lateral rail movement. FRA is also adding a section 
requiring the automated inspection of track constructed with concrete 
crossties.
    In developing this final rule, FRA relied heavily upon the work of 
the CCTF conducted during the development of the NPRM in this 
proceeding. The Working Group tasked the CCTF to consider available 
scientific and empirical data or direct new studies to evaluate the 
concrete crosstie rail seat deterioration phenomenon and, through 
consensus, propose best practices, inspection criteria, or standards to 
assure concrete crosstie safety. The members of the CCTF worked 
together to develop definitions and terminology as required and to 
disseminate pertinent information and safety concerns.
    The Federal Track Safety Standards prescribe minimum track geometry 
and structure requirements for specific railroad track conditions 
existing in isolation. Railroads are expected to maintain higher safety 
standards, and are not precluded from prescribing additional or more 
stringent requirements.
    Previously, crossties were evaluated individually by the 
definitional and functional criteria set forth in the regulations. As 
promulgated in 49 CFR 213.109, crosstie ``effectiveness'' is naturally 
subjective, short of failure of the ties, and requires good judgment in 
the application and interpretation of the standard. The soundness of a 
crosstie is demonstrated when a 39-foot track segment maintains safe 
track geometry and structurally supports the imposed wheel loads with 
minimal deviation. Key to the track segment lateral, longitudinal, and 
vertical support is a strong track modulus, which is a measure of the 
vertical stiffness of the rail foundation, sustained by a superior 
superstructure (including rails, crossties, fasteners, etc.) and high-
quality ballast characteristics that transmit both dynamic and thermal 
loads to the subgrade. Proper drainage is an apparent and crucial 
factor in providing structural support.

A. Rail Cant

    The Working Group discussed the concept of rail cant, but 
determined not to regulate this track geometric condition. The rail 
cant angle is described by AREMA as a degree of slope, or cant, 
designed toward the centerline of the crosstie. FRA does not 
specifically use the term ``rail cant'' in any of its track 
regulations, including the standards in subpart G of part 213, which 
apply to track used for the operation of trains at greater than 90 
miles per hour (mph) for passenger equipment and at greater than 80 mph 
for freight equipment (track Classes 6 and higher). However, ``rail 
cant'' is widely accepted and understood in the rail industry, and 
accordingly FRA has decided to discuss this concept in the preamble to 
this final rule. ``Rail cant deviation'' refers to the inward or 
outward angle made by the rail from design cant.
    Automated technology that measures rail cant deviations exceeding 
proper design criteria is extremely efficient in identifying problems 
with the rail/crosstie interface such as rail seat abrasion or 
deterioration, ineffective fasteners, crosstie plate cutting (wood), 
missing or worn crosstie pads, and rail/plate misalignment. The 
deterioration or abrasion is the result of a compressive load and/or 
mechanical effects of deterioration from repetitious concentrated wheel 
loading, which typically develops a triangular void on the field side 
of the rail and allows the rail to tilt or roll outward under load, 
increasing gage widening and possible rail rollover relationships.
    The CCTF could not reach consensus on a single technology or 
methodology to measure the rail cant angle when the concrete crosstie 
rail seat deteriorates. Also, the CCTF could not reach consensus on 
whether the revised standards should contain language to accommodate 
the present technology. Therefore, the CCTF recommended that FRA and 
the industry continue evaluating the possibility of developing rail 
seat deterioration standards for concrete crossties for broader 
application within the industry.
    An improper rail cant angle may be an indication of rail seat 
deterioration, which can be detected by a variety of methods. One 
method currently used is a rail profile measurement system to measure 
rail cant angle. Other, perhaps less costly, methods have not been 
fully developed. CCTF members chose not to be confined to one 
measurement system technology when others were available to select from 
in the marketplace.
    In the NPRM, FRA proposed that the automated inspection measurement 
system must be capable of measuring and processing rail cant 
requirements that specify the following: (1) An accuracy angle, in 
degrees, to within \1/2\ of a degree; (2) a distance-based sampling 
interval not exceeding two feet; and (3) calibration procedures and 
parameters assigned to the system, which assure that measured and 
recorded values accurately represent rail cant. FRA did not propose to 
mandate the use of a particular technology, rather FRA proposed that 
the technology selected by the track owner be capable of measuring and 
processing the rail cant requirements specified in 49 CFR 213.234(e). 
In this final rule, in response to public comment, FRA has required the 
track owner to use automated technology to measure rail seat 
deterioration. FRA's rationale is discussed further in the Response to

[[Page 18077]]

Public Comment Section and Section-by-Section Analysis, below.

B. Automated Inspections

    Current inspections of crossties and fasteners rely heavily on 
visual inspections by track inspectors, whose knowledge is based on 
varying degrees of experience and training. The subjective nature of 
those inspections can sometimes create inconsistent determinations 
regarding the ability of individual crossties and fasteners to support 
and restrain track geometry. Concrete crossties may not always exhibit 
strong indications of rail seat deterioration. Rail seat deterioration 
is often difficult to identify even while conducting a walking visual 
inspection. Combined with excessive wheel loading and combinations of 
compliant but irregular geometry,\7\ a group of concrete crossties 
remaining in track for an extended period of time may cause rail seat 
deterioration to develop rapidly. When a train applies an abnormally 
high lateral load to a section of track that exhibits rail seat 
deterioration, the result can be a wide gage or rail rollover 
derailment with the inherent risk of injury to railroad personnel and 
passengers, and damage to property.
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    \7\ By ``compliant but irregular geometry,'' FRA notes that 
track geometry can become irregular when multiple geometry 
measurements (gage, profile, or alinement) near the compliance 
limits. This combination of geometry conditions can cause irregular 
geometry that, when coupled with excessive wheel loading, can cause 
the rapid development of rail seat deterioration.
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V. Response to Public Comment

    FRA received comments to the NPRM from: (1) Amtrak; (2) AAR; and 
(3) ATDA, BLET, BMWED, BRS, and the UTU (labor). The comments pertained 
to both the requirements for concrete crossties as well as the 
requirements for the automated inspections of track. One of the 
comments also asked for FRA's perspective on the possibility of a track 
owner combining crossties constructed of wood and concrete in the same 
section of track. The major points of the comments are addressed below, 
and individual points made are covered in more depth in the Section-by-
Section Analysis.

Concrete Crosstie Requirements

    Both Amtrak and AAR argued against FRA's proposal in Sec.  
213.109(d) that concrete ties cannot be ``deteriorated to the point 
that prestressing material is visible.'' The commenters argued that the 
language failed to distinguish between cases where the prestressing 
material has truly been compromised and cases where a small section of 
the outer prestressing material is exposed due to small nicks or 
maintenance work. Instead, the commenters suggested that FRA adopt the 
requirement that a concrete crosstie cannot be ``completely broken 
through.'' FRA elects not to accept this comment, as the distinction 
between the pre-existing regulatory language of ``broken through'' for 
wood ties in Sec.  213.109(c) and ``completely broken through'' for 
concrete ties in Sec.  213.109(d) would be unnecessarily confusing. 
Also, FRA maintains that there are situations where concrete ties that 
are not completely broken through have, nonetheless, become 
ineffective. Additionally, there is a distinction between a concrete 
tie being simply chipped due to wheel impact as opposed to actual 
deterioration. Moreover, FRA clarifies that this regulation is not 
concerned with reinforcing material that may be left visible on the end 
of a tie during the manufacturing process. FRA's rationale is described 
further in the Section-by-Section Analysis, below.
    AAR also commented on the proposed requirement in Sec.  
213.109(d)(4), which provides that the deterioration or abrasion under 
the rail seat cannot be \1/2\ of an inch or more in order for the 
crosstie to be counted in satisfying the mandate for a minimum number 
of crossties, as set forth in Sec.  213.109(b)(4). AAR points out that 
FRA stated in the NPRM preamble that the measurement of \1/2\ of an 
inch includes depth from the loss of rail pad material. AAR argues that 
the rail pad material is not part of the concrete crosstie and that the 
loss of the rail pad material should not be included in the \1/2\ of an 
inch calculation. FRA maintains that, when a concrete tie is 
constructed with a rail pad, loss of the rail pad material must be 
included in the \1/2\ of an inch calculation. FRA addresses this point 
further in the Section-by-Section Analysis, below.
    Additionally, AAR asserts that FRA's proposed requirement in Sec.  
213.109(d)(6) that concrete crossties cannot be configured with less 
than two fasteners on the same rail is overly stringent for Class 1 and 
2 track. AAR argues that, if the fastenings on two adjacent ties on 
Class 1 or 2 track, neither of which fully comply with Sec.  
213.109(d)(5), provide the equivalent of the fastenings on one tie, the 
two adjacent ties should be counted as one tie for the purposes of 
Sec.  213.109(a)(4). AAR provides that this flexibility could be useful 
in the case of a derailment where one axle derails. For example, this 
type of derailment can result in a large number of concrete ties where 
the inner clip on one rail can no longer function, but the other three 
clips are fine. AAR proposes that these ties can be safely reused in 
Class 1 and 2 tracks by turning every second tie end for end. FRA 
responds that, as with non-concrete ties, one of the safety 
requirements of an effective concrete tie is that it be able to hold 
fasteners. Consequently, FRA is declining to accept AAR's recommended 
change to the regulatory text due to this safety concern.

Automated Inspections

    All three commenters provided their thoughts and concerns regarding 
automated inspections. The broadest concern that the comments seemed to 
share pertained to FRA's proposal that track owners use rail cant 
measurements in Sec.  213.234(d) to obtain the depth of rail seat 
deterioration. AAR suggested that some automated systems might use the 
angle of rail cant to obtain the depth of deterioration, but that 
method should not be mandated by regulation. Labor also commented that 
any automated technology that can be proven to accurately detect and 
measure rail seat abrasion within the tolerances established by FRA 
should be allowed.
    In response to these concerns, FRA accepts the commenters' 
suggestion that the regulation require that an automated system measure 
rail seat deterioration instead of rail cant. FRA has determined to 
hold the track owner to a performance-based standard of having an 
automated system that accurately measures rail seat deterioration 
without mandating which technology should be used. This point is 
discussed further in the Section-by-Section Analysis related to Sec.  
213.234(d).

Concrete and Other Than Concrete Crossties

    Labor commented that the proposed regulations would not prohibit a 
track owner from using a mixture of crossties constructed of both wood 
and concrete in the same 39-foot segment of track. The comment 
requested FRA's opinion on this practice. FRA declines to mandate the 
type of material that must be used in track. The final rule provides 
that, based upon the class of track, a 39-foot segment of track must 
have a certain number of non-defective crossties. The rule goes on to 
define what constitutes a non-defective crosstie for both concrete 
crossties and non-concrete crossties. In using the term ``crossties, 
other than concrete'' in the rule, FRA has allowed for future advances 
in technology that could allow for crossties to be constructed out of 
alternative materials. FRA has mandated that there be a specified 
number of non-defective crossties in a 39-foot segment

[[Page 18078]]

of track, but has left the type of material that compose the crossties 
in that segment to the track owner's discretion.

VI. Section-by-Section Analysis

Section 213.2 Preemptive Effect

    FRA is removing this section from 49 CFR part 213. This section was 
prescribed in 1998 and has become outdated and, therefore, misleading 
because it does not reflect post-1998 amendments to 49 U.S.C. 20106. 63 
FR 34029, June 22, 1998; Sec. 1710(c), Public Law 107-296, 116 Stat. 
2319; Sec. 1528, Public Law 110-53, 121 Stat. 453. Although FRA 
considered updating this regulatory section, FRA now believes that the 
section is unnecessary because 49 U.S.C. 20106 sufficiently addresses 
the preemptive effect of part 213. In other words, providing a separate 
Federal regulatory provision concerning the regulation's preemptive 
effect is duplicative of 49 U.S.C. 20106 and, therefore, unnecessary.

Section 213.109 Crossties

    FRA is amending this section to reflect recommendations made by the 
CCTF and adopted by RSAC. After discussion and review of concrete 
crosstie requirements in the higher speed subpart (subpart G of the 
Track Safety Standards), the CCTF concluded that performance 
specifications for concrete crossties are needed in the lower-speed 
standards. Specifically, requirements are needed to establish limits 
for rail seat abrasion, concrete crosstie pad wear limits, missing or 
broken rail fasteners, loss of appropriate toeload pressure, improper 
fastener configuration, and excessive lateral rail movement. The CCTF 
reviewed the method and manner of manual and automated inspection 
methods and technology to abate track-caused reportable derailments. 
FRA is revising this section to clarify the type of crosstie that will 
fulfill the requirements of paragraph (b) and to include requirements 
specific to concrete crossties.
    Paragraph (b). In this paragraph, FRA is clarifying that only non-
defective crossties may be counted to fulfill the requirements of the 
paragraph. Non-defective crossties are defined in paragraphs (c) and 
(d). FRA is also making other minor grammatical corrections to this 
paragraph, including moving the table of minimum number of crossties 
from paragraph (d) to paragraph (b)(4).
    Paragraph (c). FRA makes clear that this paragraph is specific to 
crossties other than concrete crossties.
    Paragraph (d). FRA is moving the existing table of minimum number 
of crossties from this paragraph, to paragraph (b)(4). FRA is 
substituting language that delineates the requirements related to 
concrete crossties.
    Paragraph (d)(1). In this paragraph, FRA states that, as with non-
concrete crossties, concrete crossties counted to fulfill the 
requirements of paragraph (b)(4) must not be broken through or 
deteriorated to the extent that prestressing material is visible. 
Crossties must not be so deteriorated that the prestressing material 
has visibly separated from, or visibly lost bond with, the concrete, 
resulting either in the crosstie's partial break-up, or in cracks that 
expose prestressing material due to spalls or chips, or in significant 
broken-out areas exposing prestressed material. Currently, metal 
reinforcing bars are used as the prestressing material in concrete 
crossties. FRA is using the term ``prestressing material'' in lieu of 
``metal reinforcing bars'' to allow for future technological advances.
    As stated in the Response to Public Comment section of the 
preamble, FRA has elected to require that a concrete crosstie must not 
be ``broken through'' or ``deteriorated to the extent that prestressing 
material is visible.'' Crosstie failure is exhibited in three distinct 
ways: Stress induced (breaks, cracks); mechanical (abrasion); or 
chemical decomposition. FRA continues to believe that breaks, cracking, 
mechanical abrasion, or chemical reaction in small or large degrees 
compromise the crosstie's ability to maintain the rails in proper gage, 
alignment, and track surface.
    FRA notes that there is a distinction between the phrases ``broken 
through'' and ``deteriorated to the extent that prestressing material 
is visible.'' Concrete crossties are manufactured in two basic designs: 
Twin-block and mono-block. Twin-block crossties are designed with two 
sections of concrete connected by exposed metal rods. A mono-block 
crosstie is similar in dimension to a timber or wood crosstie and 
contains prestress metal strands embedded into the concrete. The metal 
reinforcing strands in the concrete are observed at the ends of the 
crosstie for proper tension position. Prestressed reinforced concrete, 
including prestressed concrete ties, is made by stressing the 
reinforcing material in a mold, then pouring cement concrete over the 
reinforcing material in the mold. After the concrete cures, the tension 
on the reinforcing material is released, and the ends of the 
reinforcing material are trimmed, if appropriate for the use. The 
reinforcing material remains in tension against the concrete, which is 
very strong in compression. This allows the prestressed concrete to 
withstand both compressive and tensile loads. If the concrete spalls, 
or if the reinforcing material is otherwise allowed to come out of 
contact with the concrete, then the reinforcing material is no longer 
in tension. When this happens, the once prestressed concrete can no 
longer withstand tensile loads, and it will fail very rapidly in 
service, such as in a concrete tie.
    FRA notes that prestressing material can be exposed in a concrete 
crosstie in a crack, but it can also be exposed on the side of the tie. 
When prestressing material becomes exposed on the side of the tie, the 
reinforcing material is no longer in tension, the prestressed concrete 
can no longer withstand the tensile loads, and therefore a concrete 
crosstie can structurally fail. This does not apply to reinforcing 
material left visible at the end of the tie during the manufacturing 
process.
    The compressive strength of the concrete material and the amount of 
prestress applied in the manufacturing process provide the strength and 
stiffness necessary to adequately support and distribute wheel loads to 
the subgrade. The reinforcing metal strands/wires encased in concrete 
hold the crosstie together and provide tensile strength. However, 
significant cracking or discernible deterioration exposure of the 
reinforcing strands to water and oxygen produces loss of the prestress 
force through corrosion, concrete deterioration, and poor bonding. Loss 
of the prestress force renders the crosstie susceptible to structural 
failure and as a consequence, stability failure relating to track 
geometry non-compliance.
    During routine inspections, spalls, chips, cracks, and similar 
breaks are easily visible. However, the compression of prestressed 
concrete crossties may close cracks as they occur, making them 
difficult to observe. Even such closed cracks probably weaken the 
crossties. Breaks or cracks are divided into three general conditions: 
Longitudinal; center; and rail seat. Longitudinal cracks are horizontal 
through the crosstie and extend parallel to its length. They are 
initiated by high impacts on one or both sides of the rail bearing 
inserts. Crosstie center cracks are vertical cracks extending 
transversely or across the crosstie. These cracks are unusual and are 
the result of high negative bending movement (centerbound), originating 
at the crosstie top and extend to the bottom. Generally, the condition 
is progressive, and adjacent crossties may be affected. Rail

[[Page 18079]]

seat cracks are vertical cracks that are not easily visible. They 
usually extend from the bottom of the crosstie on one or both sides of 
the crosstie and are often hard to detect. It is possible for a 
crosstie to be broken through, but, due to the location of the break, 
the prestressing material may not be visible. Crosstie strength, 
generally, does not fail unless the crack extends through the top layer 
of the prestress strands. Once the crack extends beyond the top layer, 
there is usually a loss of strand and concrete bond strength.
    Paragraph (d)(2). This paragraph makes clear that crossties counted 
to fulfill the requirements of paragraph (b)(4) of this section must 
not be deteriorated or broken off in the vicinity of the shoulder or 
insert so that the fastener assembly can either pull out or move 
laterally more than \3/8\ inch relative to the crosstie. These 
conditions weaken rail fastener integrity.
    Paragraph (d)(3). This paragraph requires that crossties counted to 
fulfill the requirements of paragraph (b)(4) of this section must not 
be deteriorated such that the base of either rail can move laterally 
more than \3/8\ inch relative to the crosstie on curves of 2 degrees or 
greater; or can move laterally more than \1/2\ inch relative to the 
crosstie on tangent track or curves of less than 2 degrees. FRA's 
intent is to allow for a combination rail movement up to the dimensions 
specified, but not separately. The rail and fastener assembly work as a 
system, capable of providing electrical insulation, and adequate 
resistance to lateral displacement, undesired gage widening, rail 
canting, rail rollover, and abrasive or excessive compressive stresses. 
This paragraph specifically addresses Section 403(d)(6) of the RSIA, 
which states that the Secretary may address excessive lateral rail 
movement in the concrete crosstie regulations.
    Paragraph (d)(4). In this paragraph, FRA is requiring that 
crossties counted to fulfill the requirements of paragraph (b)(4) of 
this section must not be deteriorated or abraded at any point under the 
rail seat to a depth of \1/2\ inch or more. The measurement of \1/2\ 
inch includes depth from the loss of rail pad material. The importance 
of having pad material in place with sufficient hysteresis (i.e., 
resilience (elasticity) to dampen high impact loading and recover) is 
paramount to control rail seat cracks caused by rail surface defects, 
wheel flats, or out of round wheels. Additionally, concrete crossties 
must be capable of providing adequate rail longitudinal restraint from 
excessive rail creepage or thermally induced forces or stress. As 
mentioned above, ``rail creepage'' is the tractive effort or pulling 
force exerted by a locomotive or car wheels, and ``thermally induced 
forces or stress'' is the longitudinal expansion and contraction of the 
rail, creating either compressive or tensile forces as the rail 
temperature increases or decreases, respectively. The loss of pad 
material causes a loss of toeload force, which may decrease 
longitudinal restraint. This paragraph specifically addresses Section 
403(d)(1) of the RSIA, which states that the Secretary may address 
limits for rail seat abrasion in the concrete crosstie regulations.
    Paragraph (d)(5). This paragraph requires that crossties counted to 
fulfill the requirements of paragraph (b)(4) of this section must not 
be deteriorated such that the crosstie's fastening or anchoring system 
is unable to maintain longitudinal rail restraint, maintain rail hold 
down, or maintain gage, due to insufficient fastener toeload. 
Inspectors evaluate crossties individually by ``definitional and 
functional'' criteria. A compliant crosstie is demonstrated when a 39-
foot track segment maintains safe track geometry and structurally 
supports the imposed wheel loads. In addition to ballast, anchors bear 
against the sides of crossties to control longitudinal rail movement, 
and certain types of fasteners also act to control rail movement by 
exerting a downward clamping force (toeload) on the upper rail base. 
Part of the complexity of crosstie assessment is the fastener 
component. Both crossties and fasteners act as a system to deliver the 
expected performance effect. A non-compliant crosstie and defective 
fastener assembly improperly maintains the rail position and support on 
the crosstie and contributes to excessive lateral gage widening (rail 
cant-rail rollover), and longitudinal rail movement because of loss of 
toeload.
    Fastener assemblies or anchoring systems allow a certain amount of 
rail movement through the crosstie to effectively relieve rail creepage 
(tractive and thermal force build-up). However, because of the 
unrestrained buildup caused by rail creep, the longitudinal expansion 
and contraction of the rail creates either compressive or tensile 
forces, respectively. When longitudinal rail movement is uncontrolled, 
it may disturb the track structure, causing misalignment (compression) 
or pull-apart (tensile) conditions to catastrophic failure. Specific 
longitudinal performance metrics would be undesirable and restrict 
certain fastener assembly designs and capabilities to control 
longitudinal rail movement. Therefore, track inspectors must use good 
judgment in determining fastener assembly and crosstie effectiveness. 
This paragraph specifically addresses Sections 403(d)(3) and (d)(4) of 
the RSIA, which state that the Secretary may address, in the concrete 
crosstie regulations, missing or broken rail fasteners, and loss of 
appropriate toeload pressure.
    In its comments on the NPRM, AAR recommended that the phrase, 
``including rail anchors (see Sec.  213.127(b))'' be added directly 
after the word ``system'' in this paragraph. FRA agrees with this 
recommendation and has incorporated this change into the final rule 
text.
    Paragraph (d)(6). This paragraph makes clear that crossties counted 
to fulfill the requirements of paragraph (b)(4) of this section must 
not be configured with less than two fasteners on the same rail except 
as provided in Sec.  213.127(c). FRA is revising Sec.  213.127(c), 
discussed further below, to include requirements specific to fasteners 
utilized in conjunction with concrete crossties.
    In response to the NPRM, AAR commented that FRA's proposed 
requirement in Sec.  213.109(d)(6) that concrete crossties cannot be 
configured with less than two fasteners on the same rail is overly 
stringent for Class 1 and 2 track. AAR argues that, if the fastenings 
on two adjacent ties on Class 1 or 2 track, neither of which fully 
comply with paragraph (d)(5) of this section, provide the equivalent of 
the fastenings on one tie, the two adjacent ties should be counted as 
one tie for the purposes of paragraph (a)(4) of this section. AAR 
provides that this flexibility could be useful in the case of a 
derailment where one axle derails. For example, this type of derailment 
can result in a large number of concrete ties where the inner clip on 
one rail can no longer function, but the other three clips are fine. 
AAR asserts that these ties can be safely reused in Class 1 and 2 
tracks by turning every second tie end for end. FRA contends that, as 
with non-concrete ties, one of the safety requirements of an effective 
concrete tie is that it be able to hold fasteners. Thus, FRA is 
declining to accept this suggested change to the regulatory text due to 
this safety concern.

Section 213.127 Rail Fastening Systems

    FRA is revising this section by designating the existing rule text 
as paragraph (a) and adding new paragraphs (b) and (c).
    Paragraph (b). This paragraph requires that if rail anchors are 
applied to concrete crossties, then the combination of the crossties, 
fasteners, and rail

[[Page 18080]]

anchors must provide effective longitudinal restraint. FRA has elected 
not to define ``effective longitudinal restraint,'' choosing instead to 
make this provision a performance-based standard.
    Paragraph (c). This paragraph addresses instances where fastener 
placement impedes insulated joints from performing as intended by 
permitting the fastener to be modified or removed, provided that the 
crosstie supports the rail. By ``supports,'' FRA means that the 
crosstie is in direct contact with the rail or leaves an incidental 
space between the tie and rail. Certain joint configurations do not 
permit conventional fasteners to fit properly. As a result, 
manufacturers offer a modified fastener to fit along the rail so that 
the fastener provides the longitudinal requirement, or it is removed 
completely, providing lateral restraint is accomplished by ensuring 
full contact with the rail.
    Labor representatives commented that FRA should not allow for the 
removal of fasteners at insulated joints in any case where modified 
fasteners are offered by the manufacturer or are otherwise available 
from any source. In cases where removal of the fastener is the only 
option, such removal should be limited to insulated joints only, the 
crossties without fasteners must fully support the rail with no 
incidental space between the tie and rail, and that a minimum of three 
non-defective crossties on each side of the unfastened insulated joint 
be required. FRA believes that, without an engineering rationale to 
support labor's proposal, it is unnecessarily restrictive. 
Additionally, FRA points out that the requirement of having an 
effective crosstie within a prescribed distance of a joint contained in 
Sec.  213.109(e) would apply, and FRA does not see a need to modify 
this requirement for insulated joints. Finally, FRA has elected not to 
mandate what type of equipment or what manufacturer a track owner must 
use, but instead has determined to regulate the performance of the 
material to the minimum safety standards promulgated in part 213.

Section 213.234 Automated Inspection of Track Constructed With Concrete 
Crossties

    FRA is adding a new section requiring the automated inspection of 
track constructed with concrete crossties. Automated inspection 
technology is available to perform essential tasks necessary to 
supplement visual inspection, quantify performance-based specifications 
to guarantee safe car behavior, and provide objective confidence and 
ensure safe train operations. Automated inspections provide a level of 
safety superior to that of manual inspection methods by better 
analyzing weak points in track geometry and structural components. The 
computer systems in automated inspection systems can accurately detect 
geometry deviations from the Track Safety Standards and can analyze 
areas that are often hard to examine manually. Railroads benefit from 
automated inspection technology by having improved defect detection 
capabilities, suffering fewer track-related derailments, and improving 
overall track maintenance.
    Automated inspection technology is used in Track Geometry 
Measurement Systems (TGMS), Gage Restraint Measurement Systems (GRMS), 
and Vehicle/Track Interaction (VTI) performance measurement systems. 
TGMS identify single or multiple non-compliant track geometry 
conditions. GRMS aid in locating good or poor performing track strength 
locations. VTI performance measurement systems encompass both 
acceleration and wheel forces that, when exceeding established 
thresholds, often cause damage to track components and rail equipment. 
These automated technologies may be combined in the same or different 
geometry car platforms or vehicles and require vehicle/track 
measurements to be made by truck frame accelerometers, carbody 
accelerometers, or by instrumented wheelsets to measure wheel/rail 
forces, ensuring performance limits are not exceeded. Moreover, rail 
seat deterioration can be very difficult and time consuming for a track 
inspector to detect manually. Automated inspection vehicles have proven 
effective in measuring rail seat deterioration, and the inspection 
vehicles can inspect much more rapidly and accurately than a visual 
track inspection.
    Paragraph (a). In this paragraph, FRA is requiring that automated 
inspection technology be used to supplement visual inspection by Class 
I railroads including Amtrak, Class II railroads, other intercity 
passenger railroads, and commuter railroads or small governmental 
jurisdictions that serve populations greater than 50,000, on track 
constructed of concrete crossties for Class 3 main track over which 
regularly scheduled passenger service trains operate, and for all Class 
4 and 5 main track constructed with concrete crossties. FRA is also 
requiring that automated inspections identify and report concrete 
crosstie deterioration or abrasion prohibited by Sec.  213.109(d)(4). 
The purpose of the automated inspection is to measure for rail seat 
deterioration. As previously discussed, rail seat deterioration is the 
failure of the concrete surface between the rail and crossties. In 
Sec.  213.109(d)(4) FRA requires that the crosstie must not be 
``deteriorated or abraded at any point under the rail seat to a depth 
of \1/2\ inch or more.'' The depth includes the loss of rail pad 
material.
    This paragraph also explicitly states, that the requirements for 
automated track inspections do not become applicable until January 1, 
2012. The paragraph also intends to make clear that the requirements do 
not apply to sections of tangent track that are 600 feet or less in 
length that are constructed of concrete crossties, including, but not 
limited to, isolated track segments, experimental or test track 
segments, highway-rail crossings, and wayside detectors.
    Paragraph (b). In this paragraph, FRA is stating the frequencies at 
which track constructed of concrete crossties shall be inspected by 
automated means. An automated inspection must be conducted twice each 
calendar year, with no less than 160 days between inspections, if the 
annual tonnage on Class 4 and 5 main track and Class 3 main track with 
regularly scheduled passenger service exceeds 40 million gross tons 
(mgt). An automated inspection must be conducted at least once each 
calendar year if annual tonnage on Class 4 and 5 main track and Class 3 
track with regularly scheduled passenger service equals or is less than 
40 mgt annually. FRA is also requiring that either an automated or 
walking inspection be conducted once per calendar year on Class 3, 4 
and 5 main track with exclusively passenger service. Finally, this 
paragraph makes clear that track not inspected in accordance with 
paragraph (b)(1) or (b)(2) of this section because of train operation 
interruption must be reinspected within 45 days of the resumption of 
train operations by a walking or automated inspection. If this 
inspection is conducted as a walking inspection, FRA requires that the 
next scheduled inspection be an automated inspection as required by 
this paragraph.
    In its comment, labor representatives recommended that FRA should 
reduce the 40 mgt threshold to 30 mgt. The comment points out that the 
Working Group's Rail Integrity Task Force, which operated concurrently 
within the same basic timeframe as the CCTF, reached consensus to 
reduce the threshold for automated internal rail flaw detection from 40 
mgt to 30 mgt. These commenters also recommended that

[[Page 18081]]

FRA consider adding one additional automated inspection for track 
exceeding 60 mgt and one additional automated inspection for track 
exceeding 90 mgt, for a maximum of four automated inspections per 
calendar year with at least 70 days between inspections. FRA believes 
that without technical information supporting such a change, FRA is not 
persuaded to change the limits agreed upon by the Working Group. 
Additionally, internal rail flaw detection equipment is not the same as 
equipment designed to measure track geometry. A railroad is likely to 
use different equipment to measure rail cant and to detect internal 
rail flaws, so there is no particular savings in attempting to conduct 
both inspections on the same intervals. Further, development of 
internal rail flaws to failure has different characteristics from 
development of tie failures. There is no particular reason to establish 
both at the same intervals. The different RSAC recommendations reflect 
those differences, and FRA sees no need to adopt the more frequent 
intervals recommended for rail flaw detection for measurement of 
possible rail seat abrasion.
    AAR commented that paragraph (b)(4) addresses instances where 
automated inspections have not taken place because of train 
interruption. The comment states that the NPRM failed to account for 
instances where inspections cannot take place because of stopped trains 
or because the automated equipment has failed. AAR suggested amending 
the text to state that it also applies whether inspections are 
interrupted because of a standing train or by failure of the inspection 
equipment. FRA asserts that the track owner is provided a year to 
conduct either one or two inspections. This section was intended for 
circumstances out of the track owner's control, such as extreme weather 
conditions. FRA believes the rule provides sufficient flexibility to 
permit a track owner to schedule the inspections to allow for 
foreseeable operational conditions such as a standing train or failed 
equipment and still be able to conduct the required one or two 
inspections within a calendar year.
    Paragraph (c). In this paragraph, FRA excludes from the required 
automated inspections sections of tangent track of 600 feet or less 
constructed of concrete crossties, including, but not limited to, 
isolated track segments, experimental or test track segments, highway/
rail crossings, and wayside detectors. These exclusions are specified 
because FRA recognizes the economic burden caused by requiring 
automated inspections to be made on short isolated locations 
constructed of concrete crossties that may be difficult to measure 
without removal of additional material, such as grade crossing 
planking.
    Paragraph (d). In this final rule, FRA requires that the automated 
inspection measurement system must be capable of measuring and 
processing rail seat deterioration requirements which specify the 
following: (1) An accuracy, to within \1/8\ of an inch; (2) a distance-
based sampling interval not exceeding five feet; and (3) calibration 
procedures and parameters assigned to the system, which assure that 
measured and recorded values accurately represent rail seat 
deterioration.
    While other automated inspection technologies may exist in the 
field, FRA believes that the Rail Profile Measurement System (RPMS) is 
currently the best developed technology to measure rail seat 
deterioration. RPMS determines rail seat deterioration by measuring 
rail cant in tenths of a degree. It is often difficult to measure rail 
cant in the field with hand measurement tools because of the small 
dimension, e.g., one degree rail cant angle equates to \1/8\ inch depth 
between the rail seat and the rail. Typically the RPMS instrumentation 
onboard FRA geometry cars are set to notify an advisory exception when 
the angle exceeds four degrees of negative or outward rail cant. This 
paragraph was specifically added to address Section 403(d)(1) of the 
RSIA, which states that, in the concrete crosstie regulations, the 
Secretary may address limits for rail seat abrasion.
    As mentioned above, FRA received several comments relating to the 
NPRM's proposed requirement that track owners to use only automated 
systems measuring rail cant to determine rail seat abrasion was too 
restrictive. Additionally, both Amtrak and AAR commented that the 
system should be required to measure rail seat deterioration within an 
accuracy of \1/8\ of an inch. AAR also requested that the sampling rate 
be changed from two to five feet, and Amtrak requested that the 
sampling rate be changed from two feet to ten feet.
    FRA has decided to accept the commenters' suggestion to prescribe 
the results that an automated inspection system must be capable of 
producing, but to decline mandating which technology the track owner 
must use for the automated inspection system. FRA believes that current 
automated inspection systems that measure rail cant provide a reliable 
method of determining rail seat deterioration. However, to allow for 
future advances in technology, FRA will not mandate that a track 
owner's automated system must measure rail cant to determine rail seat 
deterioration. Additionally, FRA is accepting the recommendation that 
the distance-based sampling system should not exceed five feet as 
opposed to the two feet proposed in the NPRM. FRA believes that five 
feet in a distance-based sampling system will produce results to a 
sufficient accuracy level.
    Paragraph (e). In this paragraph, FRA is requiring that the 
automated inspection measurement system produce an exception report 
containing a systematic listing of all exceptions to Sec.  
213.109(d)(4), identified so that appropriate persons designated as 
fully qualified under Sec.  213.7 can field-verify each exception. This 
paragraph requires that each exception be located and field-verified no 
later than 48 hours after the automated inspection, and that all field-
verified exceptions are subject to all the requirements of part 213.
    FRA expects that the track owner would want to ensure that any 
exception that the automated inspection detects would be field-verified 
by a qualified person under Sec.  213.7. This is not only to ensure 
that the exception report accurately reflects the conditions of the 
track, but also to ensure that a qualified person can take appropriate 
remedial action in a timely manner. Additionally, FRA reminds track 
owners that all field-verified exceptions are subject to all of the 
requirements contained in FRA's Track Safety Standards.
    Labor representatives recommended that the exception report should 
also be given to the person that the track owner has designated as 
being responsible for frequency inspections pursuant to Sec.  213.233. 
Although FRA refuses to interfere with a track owner's assignment 
process and is not willing to accept this comment, FRA agrees that it 
would be a best practice for the track owner to ensure that the person 
responsible for performing the frequency inspections required by Sec.  
213.233 be provided a copy of the exception report, as all field-
verified exceptions are subject to all of FRA's Track Safety Standards.
    Paragraph (f). This paragraph requires that the track owner 
maintain a record of the inspection data and the exception record for 
the track inspected in accordance with this section for a minimum of 
two years. The record must include the date and location of limits for 
the inspection, type and location of each exception, the results of 
field verification, and any remedial action if required. The location 
identification must be provided either by milepost or by some other 
objective means, such as by the location description provided by

[[Page 18082]]

the Global Positioning System. This new regulation is intended to 
require the track owner to keep a good record of the conditions of 
track constructed of concrete crossties and, through such records, FRA 
track inspectors will have a greater ability to gain access to and 
accurately assess the railroad's compliance history.
    Paragraph (g). This paragraph requires that the track owner 
institute the necessary procedures for maintaining the integrity of the 
data collected by the measurement system. The track owner must maintain 
and make available to FRA documented calibration procedures of the 
measurement system that, at a minimum, specifies an instrument 
verification procedure that will ensure correlation between 
measurements made on the ground and those recorded by the 
instrumentation. Also, the track owner must maintain each instrument 
used for determining compliance with this section. The purpose of this 
paragraph is to ensure that the equipment that the track owner is using 
to comply with the regulations accurately detects what it is designed 
to detect. FRA has accepted a small comment from labor representatives 
removing the reference to the cant angle, as FRA has allowed for track 
owners to use alternative means of technology in their automated 
inspections.
    Paragraph (h). This paragraph requires that the track owner provide 
annual training in handling rail seat deterioration exceptions to all 
persons designated as fully qualified under Sec.  213.7 and whose 
territories are subject to the requirements of Sec.  213.234. At a 
minimum, the training required by this paragraph shall address 
interpretation and handling of the exception reports generated by the 
automated inspection measurement system, locating and verifying 
exceptions in the field and required remedial action, and recordkeeping 
requirements.
    FRA's objective is to ensure that all persons required to comply 
with the regulations are properly trained. Such persons should at least 
understand the basic principles of the required automated inspection 
process, including handling of the exception reports, field 
verification, and recordkeeping requirements. FRA accepted labor's 
comment that the training be provided annually.

VII. Regulatory Impact and Notices

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

    This final rule has been evaluated in accordance with existing 
policies and procedures and determined to be non-significant under both 
Executive Orders 12866 and 13563 and DOT policies and procedures. See 
44 FR 11034; February 26, 1979. FRA has prepared and placed in the 
docket a regulatory evaluation addressing the economic impact of this 
final rule. FRA has met with and made presentations to those who are 
likely to be affected by this rule in order to seek their views on the 
rule. As part of the regulatory evaluation, FRA has assessed 
quantitative measurements of the cost streams expected to result from 
the implementation of this final rule. The final rule has been 
determined to be non-significant under both Executive Orders 12866 and 
13563 and DOT policies and procedures.
    Document inspection and copying facilities are available at the 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC 20590. Docket material is 
also available for inspection on the Internet at http://www.regulations.gov. Photocopies may also be obtained by submitting a 
written request to the FRA Docket Clerk at the Office of Chief Counsel, 
Mail Stop 10, Federal Railroad Administration, 1200 New Jersey Avenue, 
SE., Washington, DC 20590; please refer to Docket No. FRA-2009-0007.
    The concrete crosstie standards are intended to avoid a relatively 
new type of derailment where a train traveling over concrete ties 
causes the rail to roll to the outside of a curve, because the rail 
seat has worn away (abraded). The final rule clarifies what constitutes 
an effective concrete tie and fastening system, and also requires 
railroads, other than small entities, to conduct automated inspections 
of the concrete ties.
    For those automated inspection cars with a sufficient number of 
sensors to measure rail cant, but that do not currently measure rail 
cant, the owner, either a railroad or contractor, would have to modify 
the software to calculate rail cant and provide alarms for rail cant in 
excess of limits. This is the basic cost burden associated with this 
final rule. FRA believes that measuring the rail cant will avoid future 
accidents such as the accident near Home Valley, Washington, described 
above, in which 30 people (22 passengers and 8 employees) sustained 
minor injuries; 14 of those people were taken to local hospitals. Two 
of the injured passengers were kept overnight for further observation; 
the rest were released. Track and equipment damages, in addition to 
clearing costs associated with the accident, totaled about $854,000.
    FRA is confident that implementation of the final rule would result 
in safety benefits of $124,800 annually after an initial cost of 
$1,400,000. Over 20 years, the discounted total benefit would be 
$1,414,682 at a 7 percent annual discount rate and $1,912,410 at a 3 
percent annual discount rate. The costs are not discounted because they 
are incurred in the initial year, so the discounted net benefit will be 
$14,682 at a 7 percent annual discount rate and $512,410 at a 3 percent 
annual discount rate. FRA believes the actual costs may be lower, 
because in the final rule, in response to AAR's comment, FRA allows the 
railroads to sample rail cant at intervals as long as five feet, rather 
than the two foot intervals proposed in the NPRM. FRA did not reduce 
the cost estimates, as no data was available from which to estimate 
this reduced cost. Safety benefits would justify the initial 
investment. Based on a 7 percent discount rate, the benefits are 
slightly higher than the costs, and there is a meaningful reduction in 
safety risk, which is not fully quantified because some accident costs 
were not quantified. The net benefits are more significant at the 3 
percent discount rate.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (the Act) (5 U.S.C. 601 et 
seq.) and Executive Order 13272 require a review of proposed and final 
rules to assess their impact on small entities. An agency must prepare 
an initial regulatory flexibility analysis unless it determines and 
certifies that a rule, if promulgated, would not have a significant 
impact on a substantial number of small entities.
    The U.S. Small Business Administration (SBA) stipulates in its 
``Size Standards'' that the largest a railroad business firm that is 
``for-profit'' may be, and still be classified as a ``small entity,'' 
is 1,500 employees for ``Line-Haul Operating Railroads'' and 500 
employees for ``Switching and Terminal Establishments.'' 13 CFR part 
121. ``Small entity'' is defined in the Act as a small business that is 
independently owned and operated, and is not dominant in its field of 
operation. 5 U.S.C. 601. Additionally, 5 U.S.C. 601(5) defines ``small 
entities'' as governments of cities, counties, towns, townships, 
villages, school districts, or special districts with populations less 
than 50,000. SBA's ``Size Standards'' may be altered by Federal 
agencies after consultation with SBA and in conjunction with public 
comment.

[[Page 18083]]

Pursuant to that authority, FRA has published a final policy that 
formally establishes ``small entities'' as Class III railroads, 
contractors, and shippers meeting the economic criteria established for 
Class III railroads in 49 CFR 1201.1-1, and commuter railroads or small 
governmental jurisdictions that serve populations of 50,000 or less. 49 
CFR part 209, app. C. FRA believes that no shippers, contractors, or 
small governmental jurisdictions would be affected by this final rule. 
At present there are no commuter railroads that would be considered 
small entities. The revenue requirement for Class III railroads is 
currently nominally $20 million or less in annual operating revenue. 
The $20 million limit (which is adjusted by applying the railroad 
revenue deflator adjustment) is based on the Surface Transportation 
Board's threshold for a Class III railroad carrier. FRA uses the same 
revenue dollar limit to determine whether a railroad or shipper or 
contractor is a small entity.
    Class I railroads have significant segments of concrete crossties, 
and own the overwhelming majority of all installed crossties. About a 
dozen Class II railroads that were formerly parts of Class I systems 
may have limited segments and some Class III railroads may have remote 
locations with concrete crossties, typically in turnouts and other 
segment locations less than 600 feet in length. Small railroads were 
consulted during the RSAC Working Group deliberations, and their 
interests have been taken into consideration in this final rule. The 
provisions requiring automated inspections do not apply to Class III 
railroads or any commuter railroads that may be considered small 
entities. Such entities would only be subject to new requirements for 
tie and fastener conditions; however, small railroads typically do not 
have large numbers of concrete ties, and the cost associated with 
meeting such requirements is not significant. Therefore, FRA is 
certifying that it expects there will be no significant economic impact 
on a substantial number of small entities.

C. Paperwork Reduction Act

    The information collection requirements in this final rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The section that contains the new information collection requirements 
is noted below, and the estimated burden time to fulfill each 
requirement is as follows:

----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
          49 CFR Section           Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
213.234--Automated Inspection of
 Track Constructed with Concrete
 Crossties:
    --Exception Reports..........  18 Railroads.......  150 reports........  8 hours............           1,200
    --Field-Verified Exception     18 Railroads.......  150 field            2 hours............             300
     Reports.                                            verifications.
    --Records of Inspection Data   18 Railroads.......  150 records........  30 minutes.........              75
     and Exception Records.
    --Procedures for Maintaining   18 Railroads.......  18 procedures......  4 hours............              72
     Data Integrity Collected by
     Measurement System.
    --Training of Employees in     18 Railroads.......  2,000 trained        8 hours............          16,000
     Handling Seat Deterioration.                        employees.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
information collection submission sent to OMB, please contact Mr. 
Robert Brogan at 202-493-6292 or Ms. Kimberly Toone at 202-493-6132 or 
via e-mail at the following addresses: <a href="/cdn-cgi/l/email-protection#34665b565146401a76465b53555a74505b401a535b42"><span class="__cf_email__" data-cfemail="bdefd2dfd8cfc993ffcfd2dadcd3fdd9d2c993dad2cb">[email protected]</span></a>; 
<a href="/cdn-cgi/l/email-protection#4d0624202f283f21346319222223280d292239632a223b"><span class="__cf_email__" data-cfemail="42092b2f2027302e3b6c162d2d2c2702262d366c252d34">[email protected]</span></a>.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Office of Information and Regulatory Affairs, 
725 17th St., NW., Washington, DC 20503, attn: FRA Desk Officer. 
Comments may also be sent via e-mail to the Office of Management and 
Budget at the following address: <a href="/cdn-cgi/l/email-protection#553a3c27340a262037383c26263c3a3b26153a38377b303a257b323a23"><span class="__cf_email__" data-cfemail="bbd4d2c9dae4c8ced9d6d2c8c8d2d4d5c8fbd4d6d995ded4cb95dcd4cd">[email protected]</span></a>.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication.
    FRA cannot impose a penalty on persons for violating information 
collection requirements which do not display a current OMB control 
number, if required. FRA intends to obtain current OMB control numbers 
for any new information collection requirements resulting from this 
rulemaking action prior to the effective date of this final rule. The 
OMB control number, when assigned, will be announced by separate notice 
in the Federal Register.

D. Environmental Impact

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

E. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various

[[Page 18084]]

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

F. Unfunded Mandates Reform Act of 1995

    Pursuant to Sec. 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in the expenditure by State, local, and tribal governments, in 
the aggregate, or by the private sector, of $100,000,000 or more 
(adjusted annually for inflation) [currently $140,800,000] in any 1 
year, and before promulgating any final rule for which a general notice 
of proposed rulemaking was published, the agency shall prepare a 
written statement'' detailing the effect on State, local, and tribal 
governments and the private sector. This final rule will not result in 
the expenditure, in the aggregate, of $140,800,000 or more in any one 
year, and thus preparation of such a statement is not required.

G. Energy Impact

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

H. Privacy Act Statement

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

List of Subjects in 49 CFR Part 213

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

The Final Rule

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

PART 213--[AMENDED]

0
1. The authority citation for part 213 is revised to read as follows:

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


Sec.  213.2  [Removed]

0
2. Remove Sec.  213.2.

0
3. Section 213.109 is revised to read as follows:


Sec.  213.109  Crossties.

    (a) Crossties shall be made of a material to which rail can be 
securely fastened.
    (b) Each 39-foot segment of track shall have at a minimum--
    (1) A sufficient number of crossties that in combination provide 
effective support that will--
    (i) Hold gage within the limits prescribed in Sec.  213.53(b);
    (ii) Maintain surface within the limits prescribed in Sec.  213.63; 
and
    (iii) Maintain alinement within the limits prescribed in Sec.  
213.55;
    (2) The minimum number and type of crossties specified in paragraph 
(b)(4) of this section and described in paragraph (c) or (d), as 
applicable, of this section effectively distributed to support the 
entire segment;

[[Page 18085]]

    (3) At least one non-defective crosstie of the type specified in 
paragraphs (c) and (d) of this section that is located at a joint 
location as specified in paragraph (e) of this section; and
    (4) The minimum number of crossties as indicated in the following 
table.

------------------------------------------------------------------------
                                           Tangent track, turnouts, and
                                                      curves
                                         -------------------------------
                                           Tangent track
             FRA track class                and curved     Turnouts and
                                            track less     curved track
                                           than or equal  greater than 2
                                           to 2 degrees       degrees
------------------------------------------------------------------------
Class 1.................................               5               6
Class 2.................................               8               9
Class 3.................................               8              10
Class 4 and 5...........................              12              14
------------------------------------------------------------------------

     (c) Crossties, other than concrete, counted to satisfy the 
requirements set forth in paragraph (b)(4) of this section shall not 
be--
    (1) Broken through;
    (2) Split or otherwise impaired to the extent the crosstie will 
allow the ballast to work through, or will not hold spikes or rail 
fasteners;
    (3) So deteriorated that the crosstie plate or base of rail can 
move laterally \1/2\ inch relative to the crosstie; or
    (4) Cut by the crosstie plate through more than 40 percent of a 
crosstie's thickness.
    (d) Concrete crossties counted to satisfy the requirements set 
forth in paragraph (b)(4) of this section shall not be--
    (1) Broken through or deteriorated to the extent that prestressing 
material is visible;
    (2) Deteriorated or broken off in the vicinity of the shoulder or 
insert so that the fastener assembly can either pull out or move 
laterally more than \3/8\ inch relative to the crosstie;
    (3) Deteriorated such that the base of either rail can move 
laterally more than \3/8\ inch relative to the crosstie on curves of 2 
degrees or greater; or can move laterally more than \1/2\ inch relative 
to the crosstie on tangent track or curves of less than 2 degrees;
    (4) Deteriorated or abraded at any point under the rail seat to a 
depth of \1/2\ inch or more;
    (5) Deteriorated such that the crosstie's fastening or anchoring 
system, including rail anchors (see Sec.  213.127(b)), is unable to 
maintain longitudinal rail restraint, or maintain rail hold down, or 
maintain gage due to insufficient fastener toeload; or
    (6) Configured with less than two fasteners on the same rail except 
as provided in Sec.  213.127(c).
    (e) Class 1 and 2 track shall have one crosstie whose centerline is 
within 24 inches of each rail joint (end) location. Class 3, 4, and 5 
track shall have either one crosstie whose centerline is within 18 
inches of each rail joint location or two crossties whose centerlines 
are within 24 inches either side of each rail joint location. The 
relative position of these crossties is described in the following 
three diagrams:
    (1) Each rail joint in Class 1 and 2 track shall be supported by at 
least one crosstie specified in paragraphs (c) and (d) of this section 
whose centerline is within 48 inches as shown in Figure 1.
[GRAPHIC] [TIFF OMITTED] TR01AP11.002

    (2) Each rail joint in Class 3, 4, and 5 track shall be supported 
by either at least one crosstie specified in paragraphs (c) and (d) of 
this section whose centerline is within 36 inches as shown in Figure 2, 
or:

[[Page 18086]]

[GRAPHIC] [TIFF OMITTED] TR01AP11.046

    (3) Two crossties, one on each side of the rail joint, whose 
centerlines are within 24 inches of the rail joint location as shown in 
Figure 3.
[GRAPHIC] [TIFF OMITTED] TR01AP11.003

    (f) For track constructed without crossties, such as slab track, 
track connected directly to bridge structural components, track over 
servicing pits, etc., the track structure shall meet the requirements 
of paragraph (b)(1) of this section.

0
4. Section 213.127 is revised to read as follows:


Sec.  213.127  Rail fastening systems.

    (a) Track shall be fastened by a system of components that 
effectively maintains gage within the limits prescribed in Sec.  
213.53(b). Each component of each such system shall be evaluated to 
determine whether gage is effectively being maintained.
    (b) If rail anchors are applied to concrete crossties, the 
combination of the crossties, fasteners, and rail anchors must provide 
effective longitudinal restraint.
    (c) Where fastener placement impedes insulated joints from 
performing as intended, the fastener may be modified or removed, 
provided that the crosstie supports the rail.

0
5. A new Sec.  213.234 is added to read as follows:


Sec.  213.234  Automated inspection of track constructed with concrete 
crossties.

    (a) General. Except for track described in paragraph (c) of this 
section, the provisions in this section are applicable on and after 
January 1, 2012. In addition to the track inspection required under 
Sec.  213.233, for Class 3 main track constructed with concrete 
crossties over which regularly scheduled passenger service trains 
operate, and for Class 4 and 5 main track constructed with concrete 
crossties, automated inspection technology shall be used as indicated 
in paragraph (b) of this section, as a supplement to visual inspection, 
by Class I railroads (including Amtrak), Class II railroads, other 
intercity passenger railroads, and commuter railroads or small 
governmental jurisdictions that serve populations greater than 50,000. 
Automated inspection shall identify and report exceptions to conditions 
described in Sec.  213.109(d)(4).
    (b) Frequency of automated inspections. Automated inspections shall 
be conducted at the following frequencies:
    (1) If annual tonnage on Class 4 and 5 main track and Class 3 main 
track with regularly scheduled passenger service, exceeds 40 million 
gross tons (mgt) annually, at least twice each calendar year, with no 
less than 160 days between inspections.
    (2) If annual tonnage on Class 4 and 5 main track and Class 3 main 
track with regularly scheduled passenger service is equal to or less 
than 40 mgt annually, at least once each calendar year.
    (3) On Class 3, 4, and 5 main track with exclusively passenger 
service, either an automated inspection or walking inspection must be 
conducted once per calendar year.
    (4) Track not inspected in accordance with paragraph (b)(1) or 
(b)(2) of this section because of train operation interruption shall be 
reinspected within 45 days of the resumption of train operations by a 
walking or automated inspection. If this inspection is conducted as a 
walking inspection, the next inspection shall be an automated 
inspection as prescribed in this paragraph.
    (c) Nonapplication. Sections of tangent track 600 feet or less 
constructed of concrete crossties, including, but not limited to, 
isolated track segments, experimental or test track segments, highway-
rail crossings, and wayside detectors, are excluded from the 
requirements of this section.

[[Page 18087]]

    (d) Performance standard for automated inspection measurement 
system. The automated inspection measurement system must be capable of 
measuring and processing rail seat deterioration requirements that 
specify the following:
    (1) An accuracy, to within \1/8\ of an inch;
    (2) A distance-based sampling interval, which shall not exceed five 
feet; and
    (3) Calibration procedures and parameters assigned to the system, 
which assure that measured and recorded values accurately represent 
rail seat deterioration.
    (e) Exception reports to be produced by system; duty to field-
verify exceptions. The automated inspection measurement system shall 
produce an exception report containing a systematic listing of all 
exceptions to Sec.  213.109(d)(4), identified so that an appropriate 
person(s) designated as fully qualified under Sec.  213.7 can field-
verify each exception.
    (1) Each exception must be located and field-verified no later than 
48 hours after the automated inspection.
    (2) All field-verified exceptions are subject to all the 
requirements of this part.
    (f) Recordkeeping requirements. The track owner shall maintain and 
make available to FRA a record of the inspection data and the exception 
record for the track inspected in accordance with this paragraph for a 
minimum of two years. The exception reports must include the following:
    (1) Date and location of limits of the inspection;
    (2) Type and location of each exception;
    (3) Results of field verification; and
    (4) Remedial action if required.
    (g) Procedures for integrity of data. The track owner shall 
institute the necessary procedures for maintaining the integrity of the 
data collected by the measurement system. At a minimum, the track owner 
shall do the following:
    (1) Maintain and make available to FRA documented calibration 
procedures of the measurement system that, at a minimum, specify an 
instrument verification procedure that ensures correlation between 
measurements made on the ground and those recorded by the 
instrumentation; and
    (2) Maintain each instrument used for determining compliance with 
this section such that it accurately measures the depth of rail seat 
deterioration in accordance with paragraph (d)(1) of this section.
    (h) Training. The track owner shall provide annual training in 
handling rail seat deterioration exceptions to all persons designated 
as fully qualified under Sec.  213.7 and whose territories are subject 
to the requirements of Sec.  213.234. At a minimum, the training shall 
address the following:
    (1) Interpretation and handling of the exception reports generated 
by the automated inspection measurement system;
    (2) Locating and verifying exceptions in the field and required 
remedial action; and
    (3) Recordkeeping requirements.

    Issued in Washington, DC, on March 24, 2011.
Joseph C. Szabo,
Administrator.
[FR Doc. 2011-7666 Filed 3-31-11; 8:45 am]
BILLING CODE 4910-06-P


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