42988 Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations 

1Rail joints commonly consist of two joint bars 

that are bolted to the sides of two abutting ends of 

rail and contact the rail at the bottom surface of the 

rail head and the top surface of the rail base. 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 213 

[Docket No. FRA–2008–0036] 

RIN 2130–AB90 

Track Safety Standards; Continuous 

Welded Rail (CWR) 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: FRA is amending the Federal 

Track Safety Standards to promote the 

safety of railroad operations over 

continuous welded rail (CWR). In 

particular, FRA is promulgating specific 

requirements for the qualification of 

persons designated to inspect CWR 

track, or supervise the installation, 

adjustment, or maintenance of CWR 

track. FRA is also clarifying the 

procedures associated with the 

submission of CWR plans to FRA by 

track owners. The final rule specifies 

that these plans should add focus on 

inspecting CWR for pull-apart prone 

conditions, and on CWR joint 

installation and maintenance 

procedures. This final rule will also 

make other changes to the requirements 

governing CWR. 

DATES: Effective date: This final rule is 

effective August 25, 2009. 

Compliance dates: October 9, 2009 for 

Class I railroads; November 23, 2009 for 

Class II railroads; and February 22, 2010 

for Class III railroads. 

FOR FURTHER INFORMATION CONTACT: 

Kenneth Rusk, Staff Director, Office of 

Railroad Safety, FRA, 1200 New Jersey 

Avenue, SE., Washington, DC 20590 

(telephone: (202) 493–6236); or Sarah 

Grimmer Yurasko, Trial Attorney, Office 

of the Chief Counsel, FRA, 1200 New 

Jersey Avenue, SE., Washington, DC 

20950 (telephone: (202) 493–6390). 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary 

Information 

I. Continuous Welded Rail (CWR) 

A. General 

B. Statutory and Regulatory History for 

CWR 

II. Railroad Safety Advisory Committee 

(RSAC) Overview 

III. RSAC Track Safety Standards Working 

Group 

IV. FRA’s Approach to CWR in This Final 

Rule 

A. Qualifications and Training of 

Individuals on CWR 

B. Submission of CWR Plans to FRA 

C. Availability of CWR Written Procedures 

at CWR Work Sites 

D. Special Inspections 

E. Definition of CWR 

F. Ballast 

G. Anchoring 

V. Response to Public Comment 

VI. Section-by-Section Analysis 

VII. Regulatory Impact 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

B. Regulatory Flexibility Act 

C. Paperwork Reduction Act 

D. Environmental Impact 

E. Federalism Implications 

F. Unfunded Mandates Reform Act of 1995 

G. Energy Impact 

H. Privacy Act Statement 

Background 

I. Continuous Welded Rail (CWR) 

A. General 

CWR refers to the way in which rail 

is joined together to form track. In CWR, 

rails are welded together to form one 

continuous rail that may be several 

miles long. Although CWR is normally 

one continuous rail, there can be joints 1

in it for one or more reasons: the need 

for insulated joints that electrically 

separate track segments for signaling 

purposes, the need to terminate CWR 

installations at a segment of jointed rail, 

or the need to remove and replace a 

section of defective rail. 

B. Statutory and Regulatory History for 

CWR 

FRA issued the first Federal Track 

Safety Standards in 1971. See 36 FR 

20336 (October 20, 1971), codified at 49 

CFR part 213. At that time, FRA 

addressed CWR in a rather general 

manner, stating, in 49 CFR 213.119, that 

railroads must install CWR at a rail 

temperature that prevents lateral 

displacement of track or pull-aparts of 

rail ends and that CWR should not be 

disturbed at rail temperatures higher 

than the installation or adjusted 

installation temperature. 

In 1982, FRA removed § 213.119 

because FRA believed it was so general 

in nature that it provided little guidance 

to railroads and it was difficult to 

enforce. See 47 FR 7275 (February 18, 

1982) and 47 FR 39398 (September 7, 

1982). FRA stated: ‘‘While the 

importance of controlling thermal 

stresses within continuous welded rail 

has long been recognized, research has 

not advanced to the point where 

specific safety requirements can be 

established.’’ 47 FR 7279. FRA 

explained that continuing research 

might produce reliable data in this area 

in the future. 

Congressional interest in CWR 

developed. With passage of the Rail 

Safety Enforcement and Review Act 

(Pub. L. 102–365, September 3, 1992), 

Congress required the Secretary of 

Transportation (Secretary) to evaluate 

procedures for installing and 

maintaining CWR and its attendant 

structure. In 1994, Congress further 

directed the Secretary to specifically 

evaluate cold weather installation 

procedures for CWR with passage of the 

Federal Railroad Safety Reauthorization 

Act of 1994 (Pub. L. 103–440, November 

2, 1994), codified at 49 U.S.C. 20142. As 

delegated by the Secretary, see 49 CFR 

1.49(m), FRA evaluated those 

procedures in connection with 

information gathered from the industry 

and FRA’s own research and 

development activities. FRA then 

addressed CWR procedures by adding 

§ 213.119 during its 1998 revision of the 

Track Safety Standards. See 63 FR 

33992 (June 22, 1998). 

Section 213.119, as added in 1998, 

requires railroads to develop and submit 

to FRA, written CWR plans containing 

procedures that, at a minimum, provide 

for the installation, adjustment, 

maintenance, and inspection of CWR, as 

well as a training program and minimal 

recordkeeping requirements. Section 

213.119 does not dictate which 

procedures a railroad must use in its 

CWR plan; however, it states that each 

track owner with track constructed of 

CWR shall have in effect and comply 

with a plan that contains written 

procedures which address the 

installation, adjustment, maintenance, 

and inspection of CWR, the inspection 

of CWR joints, and a training program 

for the application of those procedures. 

It allows each railroad to develop and 

implement its individual CWR plan 

based on procedures which have proven 

effective for it over the years. The 

operative assumption was that 

geophysical conditions vary so widely 

among U.S. railroads that, in light of 

what was then known about CWR, CWR 

plans should vary to take account of 

them. Accordingly, procedures can vary 

from railroad to railroad. 

On August 10, 2005, President Bush 

signed into law the Safe, Accountable, 

Flexible, Efficient Transportation Equity 

Act: A Legacy for Users (SAFETEA–LU) 

(Pub. L. 109–59). Section 9005(a) of 

SAFETEA–LU amended 49 U.S.C. 

20142 by adding a new subsection (e). 

This new subsection required that 

within 90 days after its enactment, FRA 

require (1) each track owner using CWR 

track to include procedures (in its 

procedures filed with FRA pursuant to 

§ 213.119) to improve the identification 

of cracks in rail joint bars; (2) instruct 


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FRA track inspectors to obtain copies of 

the most recent CWR programs of each 

railroad within the inspectors’ areas of 

responsibility and require that 

inspectors use those programs when 

conducting track inspections; and (3) 

establish a program to review CWR joint 

bar inspection data from railroads and 

FRA track inspectors periodically. This 

new subsection also provided that 

whenever FRA determines that it is 

necessary or appropriate, FRA may 

require railroads to increase the 

frequency of inspection, or improve the 

methods of inspection, of joint bars in 

CWR. 

Pursuant to this mandate, on 

November 2, 2005, FRA revised the 

Track Safety Standards by publishing an 

interim final rule (IFR), 70 FR 66288, 

which addresses the inspection of rail 

joints in CWR. FRA requested comment 

on the IFR and provided the Railroad 

Safety Advisory Committee (RSAC) with 

an opportunity to review the comments 

on the IFR. To facilitate this review, on 

February 22, 2006, RSAC established 

the Track Safety Standards Working 

Group (Working Group). The Working 

Group was given two tasks: (1) To 

resolve the comments on the IFR, and 

(2) to make recommendations regarding 

FRA’s role in oversight of CWR 

programs, including analyzing the data 

to determine effective management of 

CWR safety by the railroads. The first 

task, referred to as ‘‘Phase I’’ of the CWR 

review, included analyzing the IFR on 

the inspection of joint bars in CWR 

territory, reviewing the comments on 

the IFR, and developing 

recommendations for the final rule. 

With guidance from the Working Group, 

FRA published a final rule on October 

11, 2006, 71 FR 59677, which addressed 

the comments on the IFR, adopted a 

portion of the IFR, and made changes to 

other portions. The final rule became 

effective October 31, 2006, and is 

codified at 49 CFR part 213. 

The Working Group then turned to 

the second task, referred to as ‘‘Phase II’’ 

of RSAC’s referral, which involves an 

examination of all the requirements of 

§ 213.119 concerning CWRB—not 

focused only on those concerning joints 

in CWR. As discussed below, the 

Working Group reported its findings 

and recommendations to RSAC at its 

February 20, 2008 meeting. RSAC 

approved the recommended consensus 

regulatory text proposed by the Working 

Group, which accounts for the majority 

of the notice of proposed rulemaking 

(NPRM) that FRA published on 

December 1, 2008 at 73 FR 73078. FRA 

received five comments during the 

public comment period for the NPRM, 

which the agency will address in the 

discussion of this final rule. 

II. Railroad Safety Advisory Committee 

(RSAC) Overview 

In March 1996, FRA established 

RSAC, which provides a forum for 

developing consensus recommendations 

to FRA’s Administrator on rulemakings 

and other safety program issues. The 

RSAC includes representation from all 

of the agency’s major stakeholder 

groups, including railroads, labor 

organizations, suppliers and 

manufacturers, and other interested 

parties. A list of RSAC members 

follows: 

American Association of Private Railroad Car 

Owners (AARPCO); 

American Association of State Highway & 

Transportation Officials (AASHTO); 

American Chemistry Council; 

American Petrochemical Institute; 

American Public Transportation Association 

(APTA); 

American Short Line and Regional Railroad 

Association (ASLRRA); 

American Train Dispatchers Association 

(ATDA); 

Association of American Railroads (AAR); 

Association of Railway Museums (ARM); 

Association of State Rail Safety Managers 

(ASRSM); 

Brotherhood of Locomotive Engineers and 

Trainmen (BLET); 

Brotherhood of Maintenance of Way 

Employes Division (BMWED); 

Brotherhood of Railroad Signalmen (BRS); 

Chlorine Institute; 

Federal Transit Administration (FTA);* 

Fertilizer Institute; 

High Speed Ground Transportation 

Association (HSGTA); 

Institute of Makers of Explosives; 

International Association of Machinists and 

Aerospace Workers; 

International Brotherhood of Electrical 

Workers (IBEW); 

Labor Council for Latin American 

Advancement (LCLAA);* 

League of Railway Industry Women;* 

National Association of Railroad Passengers 

(NARP); 

National Association of Railway Business 

Women;* 

National Conference of Firemen & Oilers; 

National Railroad Construction and 

Maintenance Association; 

National Railroad Passenger Corporation 

(Amtrak); 

National Transportation Safety Board 

(NTSB);* 

Railway Supply Institute (RSI); 

Safe Travel America (STA); 

Secretaria de Comunicaciones y Transporte;* 

Sheet Metal Workers International 

Association (SMWIA); 

Tourist Railway Association Inc.; 

Transport Canada;* 

Transport Workers Union of America (TWU); 

Transportation Communications 

International Union/BRC (TCIU/BRC); 

Transportation Security Administration 

(TSA);* and 

United Transportation Union (UTU). 

*Indicates associate, non-voting membership. 

When appropriate, FRA assigns a task 

to RSAC, and after consideration and 

debate, RSAC may accept or reject the 

task. If the task is accepted, RSAC 

establishes a working group that 

possesses the appropriate expertise and 

representation of interests to develop 

recommendations to FRA for action on 

the task. These recommendations are 

developed by consensus. A working 

group may establish one or more task 

forces to develop facts and options on 

a particular aspect of a given task. The 

task force then provides that 

information to the working group for 

consideration. If a working group comes 

to unanimous consensus on 

recommendations for action, the 

package is presented to the full RSAC 

for a vote. If the proposal is accepted by 

a simple majority of RSAC, the proposal 

is formally recommended to FRA. FRA 

then determines what action to take on 

the recommendation. Because FRA staff 

play an active role at the working group 

level in discussing the issues and 

options and in drafting the language of 

the consensus proposal, FRA is often 

favorably inclined toward the RSAC 

recommendation. 

However, FRA is in no way bound to 

follow the recommendation, and the 

agency exercises its independent 

judgment on whether the recommended 

rule achieves the agency’s regulatory 

goal, is soundly supported, and is in 

accordance with policy and legal 

requirements. Often, FRA varies in some 

respects from the RSAC 

recommendation in developing the 

actual regulatory proposal or final rule. 

Any such variations would be noted and 

explained in the rulemaking document 

issued by FRA. If the working group or 

RSAC is unable to reach consensus on 

recommendations for action, FRA 

moves ahead to resolve the issue 

through traditional rulemaking 

proceedings. 

III. RSAC Track Safety Standards 

Working Group 

As noted above, RSAC established the 

Track Safety Standards Working Group 

on February 22, 2006. To address Phase 

I of RSAC’s referral, the Working Group 

convened on April 3–4, 2006; April 26– 

28, 2006; May 24–25, 2006; and July 19– 

20, 2006. The results of the Working 

Group’s efforts were incorporated into 

the final rule that was published on 

October 11, 2006. To address Phase II of 

RSAC’s referral, the Working Group 

convened on January 30–31, 2007; April 

10–11, 2007; June 27–28, 2007; August 

15–16, 2007; October 23–24, 2007; and 


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January 8–9, 2008. The Working Group’s 

finding and recommendations were then 

presented to the full RSAC on February 

20, 2008, as noted above. 

The members of the Working Group, 

in addition to FRA, include the 

following: 

AAR, including members from BNSF 

Railway Company (BNSF), Canadian 

National Railway (CN), Canadian Pacific 

Railway (CP), Consolidated Rail 

Corporation (Conrail), CSX 

Transportation, Inc. (CSX), The Kansas 

City Southern Railway Company (KCS), 

Norfolk Southern Railway Company 

(NS), and Union Pacific Railroad 

Company (UP); 

Amtrak; 

APTA, including members from Port 

Authority Trans-Hudson Corporation 

(PATH), LTK Engineering Services, 

Northeast Illinois Regional Commuter 

Railroad Corporation (Metra), and 

Peninsula Corridor Joint Powers Board 

(Caltrain); 

ASLRRA (representing Class III/ 

smaller railroads); 

ASRSM (represented by staff from the 

California Public Utilities Commission 

(CPUC)); 

BLET; 

BMWED; 

BRS; 

Kandrew, Inc.; 

Transportation Technology Center, 

Inc. (TTCI); and 

UTU. 

Staff from DOT’s John A. Volpe 

National Transportation Systems Center 

(Volpe Center) attended all of the 

meetings and contributed to the 

technical discussions. In addition, 

NSTB staff attended all of the meetings 

and contributed to the discussions as 

well. 

FRA has worked closely with the 

RSAC in developing its 

recommendations and believes that the 

RSAC has effectively addressed 

concerns with regard to FRA’s 

management of CWR and rail carriers’ 

effective implementation of their CWR 

plans. FRA has greatly benefited from 

the open, informed exchange of 

information during the meetings. There 

is a general consensus among the 

railroads, rail labor organizations, State 

safety managers, and FRA concerning 

the primary principles FRA sets forth in 

this final rule. The Working Group has 

also benefited in particular from 

participation of NTSB staff. FRA 

believes that the expertise possessed by 

the RSAC representatives enhances the 

value of the recommendations, and FRA 

has made every effort to incorporate 

them in this final rule. 

The Working Group was unable to 

reach consensus on one item that FRA 

has elected to include in this final rule. 

The Working Group did not reach 

consensus with regard to the change to 

49 CFR 213.119(c), which describes the 

joint installation and maintenance 

procedures that track owners must 

include in their CWR plans. The FRA 

representatives to the Working Group 

felt strongly that the text is necessary to 

include in the final rule, as the failure 

of CWR joints was the principal basis 

for the 2006 final rule. The FRA 

members believed that the integrity of 

CWR joints could not be definitively 

maintained without requiring that the 

specific installation and maintenance 

procedures delineated in § 213.119(c) be 

included in the track owner’s CWR 

plan. On the other hand, the rail carrier 

representatives argued that such specific 

requirements would interfere with their 

freedom to modify installation and 

maintenance procedures as they saw fit. 

Nevertheless, it is FRA’s position that 

the text is necessary to prevent the 

failure of CWR joints and has included 

this singular, non-consensus item into 

the rule text of this final rule. 

IV. FRA’s Approach to CWR in This 

Final Rule 

As opposed to the more narrow 

approach taken by FRA when 

publishing the final rule on inspections 

of joints in CWR (Oct. 11, 2006; 71 FR 

59677), FRA broadly reviewed all of 

§ 213.119 for purposes of this final rule. 

In collaboration with the Working 

Group, FRA examined compliance with 

§ 213.119 in general and concerns 

brought forward by the industry. At the 

end of the first Working Group meeting, 

FRA decided to focus the review on the 

following issues: the training/re-training 

of individuals qualified to maintain and 

inspect CWR; the submission of CWR 

plans to FRA; the availability of a 

carrier’s plan at CWR work sites; special 

inspections of CWR; the definition of 

CWR; ballast; and anchoring 

requirements. 

A. Qualifications and Training of 

Individuals on CWR 

During the rulemaking on inspections 

of joints in CWR, the BMWED suggested 

that there should be annual re-training 

of track inspectors on joint bar 

inspections in CWR. FRA understood 

this comment as pertaining to CWR 

training in general and resolved to 

address this concern as part of the Phase 

II task of broadly reviewing § 213.119. In 

carrying out this task, and because of 

the concern raised by the BMWED, the 

Working Group decided that it would be 

beneficial to review accident data from 

Class I and shortline railroads to 

determine whether accidents on CWR 

could be attributed to training 

deficiencies of track inspectors. The 

Working Group established the 

Accident Review Task Force (AR Task 

Force) to facilitate this review and 

analysis, and it was comprised of FRA 

and the following Working Group 

members: 

AAR, including BNSF, CSX, CP, NS, 

and UP; 

Amtrak; 

APTA, including Metra; 

ASLRRA; 

BMWED; and 

BRS. 

Staff from the Volpe Center and NTSB 

also participated in this effort, which 

focused on researching and analyzing 

accident data from the years 2000 to 

2007 for major causal factors of 

accidents on CWR. The AR Task Force 

initially reviewed over 1100 accident/ 

incident report forms from January 2000 

to August 2007. After taking into 

consideration the location of the most 

severe accidents/incidents, the AR Task 

Force narrowed its review to exclude 

accidents/incidents on Class 1 and 

excepted track, as defined in 49 CFR 

part 213. The final review included over 

200 reports that met the objectives and 

criteria for study. 

The AR Task Force determined that a 

high volume of accidents was due to 

misalignment of track, caused by 

sunkinks or buckling of the track. The 

AR Task Force also discovered that each 

incident studied occurred after track 

work had been performed recently, and, 

surprisingly, that the carriers’ CWR 

engineering standards were not being 

followed in conducting various types of 

track work. In particular, the research 

disclosed failure to adequately de-stress 

the track following a previous 

derailment; failure to maintain the 

neutral temperature of the rail and to 

record the amount of rail added or 

removed during installation; failure to 

adjust or replace deficient anchors; and 

failure to place the proper speed 

restrictions and/or maintain a sufficient 

length of time and/or tonnage on 

disturbed track. Moreover, upon review 

of the railroads’ CWR program plans, 

FRA noted that the railroads were not 

providing comprehensive guidelines for 

the training/retraining of their 

employees in the application of CWR 

procedures. 

Given the concerns raised, the 

Working Group decided that it was 

necessary to ensure that individuals are 

properly qualified and trained to install, 

adjust, maintain, and inspect CWR 

track. Section 213.7 previously 

delineated how a railroad must 

designate (1) qualified persons to 

supervise restorations and renewals of 


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2 In November 2008 the Office of Safety was 

renamed the Office of Railroad Safety. 

track, (2) qualified persons to inspect 

track, and (3) persons who may pass 

trains over broken rails and pull-aparts. 

However, the section contained no 

explicit provision for individuals to 

supervise restorations and renewals of 

track, or for individuals to inspect track, 

specific to CWR. In order to address 

qualification and training concerns 

specific to individuals qualified on 

CWR, the Working Group recommend 

adding a new paragraph (c) to § 213.7. 

See the Section-by-Section Analysis, 

below, for further discussion of the 

changes to this section. 

B. Submission of CWR Plans to FRA 

The second issue that was raised at 

the Working Group discussions 

involved the submission of CWR plans 

to FRA. FRA representatives raised the 

concern that rail carriers were 

presenting plans to FRA’s Office of 

Safety 2 that were not the current plans, 

were unenforceable because of their 

vagueness, and did not contain all of the 

procedures in a single, comprehensive 

document. The Working Group 

therefore discussed: (1) The need to 

develop a mechanism for updating and 

submitting CWR program procedures in 

a timely manner to FRA’s Office of 

Safety; (2) notification and resubmission criteria for any and all 

modifications to program plans; (3) the 

need for CWR procedures to be 

contained in a single document; and (4) 

the desirability of track owners 

submitting changes to CWR procedures 

to FRA prior to implementation, as 

immediate implementation can cause 

problems with enforcement activities 

and information being available to FRA 

personnel in the field. 

The Working Group determined that 

there was a need to establish procedures 

for the submission and implementation 

of modified CWR plans to maintain 

consistency with the continued growth 

of the industry through developments in 

engineering and technology. Initially, 

rail carrier representatives did not agree 

with FRA’s position on the need for 

changes to their CWR procedures to be 

sent to FRA prior to their 

implementation. They contended that 

changes in CWR procedures should be 

effective immediately, without having to 

submit the changes to FRA in advance. 

For example, the rail carrier 

representatives stated that the ability to 

change their plans as they wished 

would help them to more expeditiously 

incorporate recent developments based 

upon engineering and accident review 

findings. However, since FRA enforces 

the plan that the track owner has on file 

with FRA, if track owners change their 

plans without first notifying FRA, the 

agency cannot properly enforce their 

plans. The rail carrier representatives 

acknowledged this issue and agreed to 

FRA’s proposal that any change to a 

CWR plan be submitted to FRA at least 

30 days prior to its implementation. 

Nevertheless, FRA makes clear that a 

track owner is allowed to immediately 

implement more restrictive measures 

than provided for in the plan on file 

with FRA. The track owner can, of 

course, do more than the minimum 

measures provided for in its plan, such 

as to address an immediate safety 

concern. However, the track owner 

would not be able to do less than the 

minimum measures provided for in its 

plan without first following the 

proposed procedures for changing the 

plan. 

The rail carrier representatives stated 

that they would like to know when FRA 

has received a submitted CWR plan. 

FRA agreed that this request was 

reasonable, and agreed to include a 

provision in the regulation stating that 

FRA will issue a written statement 

acknowledging receipt of the plan to the 

track owner. The Working Group also 

discussed that the current regulatory 

text was vague as to what FRA did with 

a plan once it was received. FRA has 

determined that the best course of 

action is to allow for the agency to 

review a plan and, if it is disapproved, 

to state the reasons for the disapproval. 

This is intended to allow the track 

owner to better understand and remedy 

the deficiencies that FRA identifies with 

its plan. The final regulatory text also 

provides a process by which the track 

owner could appeal an initial rejection 

of its CWR plan by FRA. This process 

is further discussed in the Section-bySection Analysis, below. 

C. Availability of CWR Written 

Procedures at CWR Work Sites 

With the passage of SAFETEA–LU in 

2005, Congress mandated that FRA 

instruct its track inspectors to obtain the 

most recent copies of rail carriers’ CWR 

plans and to use these plans when 

conducting track inspections. In 

response, FRA posted the CWR plans 

received by the Office of Safety on 

FRA’s Intranet site, where they are 

available to all Federal and State 

inspectors, and has instructed all of its 

inspectors to use these plans when 

conducting track inspections. 

The Working Group discussed the 

desirability of having copies of the 

carrier’s written CWR procedures at 

every work site. FRA and labor 

representatives maintained that updated 

revisions and modifications to the CWR 

plans should be made available to the 

carrier personnel responsible for the 

installation, adjustment, maintenance, 

and inspection of CWR; railroads should 

maintain/retain these procedures and 

guidelines within their engineering 

manuals. FRA proposed to the Working 

Group that the railroads provide a copy 

of their CWR program plans to be 

maintained on-site during the 

performance of duties either with the 

employee in charge or the qualified 

employee conducting the work. This 

type of practice would ensure that 

personnel understand the track owner’s 

CWR policies and procedures. 

The Working Group reached 

consensus that the track owner should 

make available, in one comprehensive 

manual, a copy of the track owner’s 

CWR plan, including all revisions, 

appendices, updates, and referenced 

materials, at every job site where 

personnel are assigned to install, 

inspect, and maintain CWR. 

D. Special Inspections 

During Phase I of the Working 

Group’s assignment, it was determined 

that the issue of special inspections of 

CWR during cold weather be tabled 

until Phase II. During preliminary Phase 

II discussions, the Working Group 

recognized that this issue would be 

better resolved by enlisting additional 

resources for further technical 

engineering research and analysis. The 

Working Group therefore formed the 

Technical Issues Task Force (TI Task 

Force), which was principally 

comprised of members from the Volpe 

Center and Kandrew, Inc., an 

independent engineering contractor 

engaged to represent the interests of the 

AAR. Technical concerns discussed by 

the TI Task Force included: Speed 

restrictions for track work following 

mechanized stabilization (i.e., how slow 

orders are lifted); maintaining the 

desired rail installation temperature 

range; inspecting for curve movement; 

the relationship between ambient and 

rail temperature; special inspections 

(cold weather effects on rail); and rail 

anchoring requirements. The TI Task 

Force reported to the Working Group 

that all of these issues should be 

handled either individually or jointly in 

special CWR inspections. 

E. Definition of CWR 

CWR refers to the way in which rail 

is joined together to form track. In CWR, 

rails are welded together to form one 

continuous rail that may be several 

miles long. Although CWR is nominally 

one continuous rail, rail joints may exist 

for many different reasons. CWR is 


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currently defined as rail that has been 

welded together into lengths exceeding 

400 feet. Labor representatives 

questioned whether the railroads would 

consider CWR into which a joint has 

been installed (to repair a rail break or 

remove a detected defect, for example) 

to be jointed rail and no longer subject 

to the railroad’s CWR maintenance 

policy. FRA’s position is that rail 

designated as CWR when installed 

remains CWR irrespective of whether it 

contains a joint or joints. 

F. Ballast 

In its ongoing review of CWR plans, 

FRA noted that some track owners 

included a definition of what 

constitutes ‘‘sufficient ballast’’ in their 

plans. Some plans cited specific 

measurements prescribing the amount 

of ballast appropriate for various track 

locations. During the Working Group 

meetings, labor representatives 

proposed that FRA adopt a definition of 

minimum sufficient ballast. The labor 

representatives also requested 

additional information from the Volpe 

Center to address concerns about how 

track ballast affects track strength. The 

ensuing discussion highlighted the fact 

that the track owners’ CWR plans 

(which are submitted to FRA) are 

supplemented in practice by additional 

railroad-specific policies and 

procedures (‘‘best practices’’) which are 

often more restrictive. Rail carrier 

representatives were reluctant to have 

explicit ballast requirements in their 

CWR plans, due to the concern that 

ballast conditions may not always be 

maintained to the presumably more 

stringent internal standards. 

The Track Safety Standards define 

ballast in § 213.103 as material which 

will transmit and distribute the load of 

the track and railroad rolling equipment 

to the subgrade; restrain the track 

laterally, longitudinally, and vertically 

under dynamic loads imposed by 

railroad rolling equipment and thermal 

stress exerted by the rails; provide 

adequate drainage for the track; and 

maintain proper track crosslevel, 

surface, and alinement. It is FRA’s 

position that § 213.103 appropriately 

defines the term ‘‘ballast’’ for use by the 

regulated industry. 

G. Anchoring 

The Working Group discussed rail 

anchoring specifically in terms of 

controlling longitudinal force near joints 

installed at the end of CWR strings and 

near joints within CWR strings. A CWR 

string is understood to be a length of 

CWR rail set aside by the railroad for 

installation in the track. Of concern is 

the relative effectiveness of anchoring 

patterns—every tie versus every other 

tie in conventional, wood tie 

construction. Railroads typically do not 

change anchoring patterns when 

installing joints within CWR strings, 

and generally have policies to remove 

the joint when practical. At the end of 

CWR strings some railroads under 

certain circumstances box-anchor every 

tie for a prescribed distance to help 

control the longitudinal forces at the 

transition. This is not a universally 

accepted practice. The primary effect of 

this practice is to reduce the 

longitudinal force carried by the joint 

when the rail is in tension. As the force 

carried by the joint increases, the 

predicted life of the joint shortens. 

Please see the discussion in the Sectionby-Section Analysis for § 213.119(c) to 

see the options that FRA gives track 

owners to strengthen a joint by relieving 

the tensile forces that it endures. 

The Working Group also focused on 

when the joint would be removed, and 

proposed time limits for certain actions 

based on the performance of the joint in 

practice. One of the concerns is that as 

the joint fails the existing stress-free 

temperature of the rail may significantly 

be reduced, and, hence, require 

subsequent adjustment. Although the 

technical aspects of this issue were 

agreed upon by the Working Group, 

consensus was not reached on including 

specific requirements in the regulatory 

text. Please see the Section-by-Section 

Analysis for further discussion on this 

issue. 

V. Response to Public Comment 

FRA received comments from the 

American Association for Justice, AAR, 

BMWED, Metra, and NTSB during the 

public comment period for the NPRM. 

FRA has reviewed and analyzed each 

issue brought up by the comments, 

which the agency will address in this 

discussion and in the final rule text. 

Preemption 

The American Association for Justice 

(AAJ) commented that FRA should 

revise its section entitled ‘‘Executive 

Order 13132’’ to delete any language 

regarding the preemption of State 

common law claims. AAJ stated that, 

contrary to the agency’s assertions, the 

former Federal Railroad Safety Act of 

1970 (FRSA) does not authorize the 

preemption of State common law 

claims. AAJ claimed that FRA 

regulations have never lawfully 

preempted State law claims. The 

petition also stated that Congress 

reiterated its intent to preserve State tort 

claims against negligent railroads. 

Finally, AAJ argued that agency rules 

must clearly follow the FRSA’s limited 

preemption language, and that State 

common law should govern railroad 

safety issues. 

Contrary to AAJ’s claim, FRA’s 

Federalism Statement correctly recites 

that the rule preempts State common 

law standards of care. The Supreme 

Court has spoken clearly on the subject 

of preemption State common law by 49 

U.S.C. 20106 (Section 20106). The 

question was squarely presented to the 

Court in CSX Transp., Inc. v. 

Easterwood, 507 U.S. 658 (1993), in 

which one of the respondent’s claims 

was that, despite FRA’s track standards 

(49 CFR part 213) which permit a 

maximum speed of 60 m.p.h. over the 

class four track involved in the case and 

train speed at the collision below 60 

m.p.h., ‘‘petitioner [CSX] breached its 

common-law duty to operate its train at 

a moderate and safe rate of speed.’’ Id. 

at 673. The Court’s answer was ‘‘[w]e 

hold that, under the FRSA, Federal 

regulations adopted by the Secretary of 

Transportation pre-empt respondent’s 

negligence action only insofar as it 

asserts that petitioner’s train was 

traveling at an excessive speed.’’ Id. at 

676. In reaching that judgment, the 

Court reasoned that ‘‘[a]ccording to 

§ [20106], applicable Federal regulations 

may pre-empt any State ‘law, rule, 

regulation, order, or standard relating to 

railroad safety.’ Legal duties imposed on 

railroads by the common law fall within 

the scope of these broad phrases.’’ Id. at 

664. The Supreme Court very plainly 

held that the State common-law 

standard of care was preempted by 

FRA’s Track Safety Standards, but that 

the underlying negligence action was 

not. That is completely in accord with 

the amendment Congress enacted to 

Section 20106 in section 1528 of the 

Implementing Recommendations of the 

9/11 Commission Act of 2007 (9/11 

Commission Act of 2007). 

The Supreme Court’s interpretation of 

Section 20106 was confirmed and 

further explained in a subsequent case 

also involving a grade crossing wreck, 

but alleging that the railroad negligently 

failed to maintain adequate warning 

devices at the grade crossing in 

question. The Supreme Court held: 

Sections 646.214(b)(3) and (4) [the Federal 

Highway Administration regulations 

mandating the installation of particular 

warning devices when certain conditions 

exist] ‘‘cover the subject matter’’ of the 

adequacy of warning devices installed with 

the participation of Federal funds. As a 

result, the FRSA pre-empts respondent’s 

State tort claim that the advance warning 

signs and reflectorized crossbucks installed 

at the Oakwood Church Road crossing were 

inadequate. Because the TDOT used Federal 

funds for the signs’ installation, 

§§ 646.214(b)(3) and (4) governed the 


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selection and installation of the devices. And 

because the TDOT determined that warning 

devices other than automatic gates and 

flashing lights were appropriate, its decision 

was subject to the approval of the FHWA. See 

§ 646.214(b)(4). Once the FHWA approved 

the project and the signs were installed using 

Federal funds, the Federal standard for 

adequacy displaced Tennessee statutory and 

common law addressing the same subject, 

thereby pre-empting respondent’s claim. 

Norfolk Southern Ry. Co. v. Shanklin, 

529 U.S. 344, 358–359 (2000). It could 

not be clearer that, before Congress 

amended Section 20106 in 2007, it 

provided for preemption of State 

common law by DOT regulations. 

Congress was moved to amend 

Section 20106 by two court cases, 

Lundeen v. Canadian Pacific Ry. Co., 

507 F.Supp.2d 1006 (D.Minn. 2007), 

and Mehl v. Canadian Pacific Ry., Ltd., 

417 F.Supp.2d 1104 (D.N.D. 2006), 

which left without a legal remedy tort 

plaintiffs injured in a hazardous 

material release from a train wreck in 

Minot, North Dakota. The judge’s 

opinion in Lundeen said: 

Preemption bars private claims for FRA 

violations. Congress has given the Secretary 

of Transportation ‘‘exclusive authority’’ to 

impose civil penalties and request 

injunctions for violations of the railroad 

safety regulations. FN4 49 U.S.C. 20111(a); 

Abate v. S. Pac. Transp. Co., 928 F.2d 167, 

170 (5th Cir. 1991) (‘‘The structure of the 

FRSA indicates that Congress intended to 

give Federal agencies, not private persons, 

the sole power of enforcement.’’). 

FN4. The single exception to the 

Secretary’s exclusive authority exists when 

the Federal government fails to act promptly. 

In such cases, State government agencies can 

file suit, impose penalties, or seek 

injunctions. 49 U.S.C. 20113. 

Indeed, the FRSA has ‘‘absolved railroads 

from any common law liability for failure to 

comply with the safety regulations.’’ Mehl, 

417 F.Supp.2d at 1120. This is the regulatory 

scheme which Congress has imposed. And 

when Congress has clearly spoken, any relief 

from its regime must come from Congress 

rather than the Courts. Private actions against 

railroads based on Federal regulations are 

preempted. 

Lundeen, supra at 1016. 

The amendment to Section 20106 

made by section 1528 of the 9/11 

Commission Act of 2007 did not change 

the text the Supreme Court had 

interpreted. Instead, Congress enacted a 

very precise cure for the problem 

presented by Lundeen and Mehl by 

amending Section 20106 to renumber 

the then-existing language as subsection 

(a), and adding two new subsections as 

follows: 

(b) Clarification regarding State law 

causes of action.—(1) Nothing in this 

section shall be construed to preempt an 

action under State law seeking damages 

for personal injury, death, or property 

damage alleging that a party— 

(A) Has failed to comply with the 

Federal standard of care established by 

a regulation or order issued by the 

Secretary of Transportation (with 

respect to railroad safety matters), or the 

Secretary of Homeland Security (with 

respect to railroad security matters), 

covering the subject matter as provided 

in subsection (a) of this section; 

(B) Has failed to comply with its own 

plan, rule, or standard that it created 

pursuant to a regulation or order issued 

by either of the Secretaries; or 

(C) Has failed to comply with a State 

law, regulation, or order that is not 

incompatible with subsection (a)(2). 

(2) This subsection shall apply to all 

pending State law causes of action 

arising from events or activities 

occurring on or after January 18, 2002. 

(c) Jurisdiction.—Nothing in this 

section creates a Federal cause of action 

on behalf of an injured party or confers 

Federal question jurisdiction for such 

State law causes of action. 

New subsection (b) clarifies that, as 

the Supreme Court held in Easterwood, 

regulations or orders issued by the 

Secretary of Transportation preempt the 

State standard of care, but not the 

underlying cause of action in tort, 

thereby preserving the ability of injured 

parties to seek redress in court. 

Since FRA’s Track Safety Standards 

(49 CFR part 213) were involved in both 

Easterwood and Lundeen, they are 

especially apt for illuminating FRA’s 

interpretation of the amended statute. 

The Track Safety Standards 

substantially subsume the subject 

matters of standards for railroad track 

and train speeds over it and, therefore, 

preempt State standards, both statutory 

and common law, pertaining to those 

subjects. Nevertheless, under Section 

20106(b)(1)(A), a private plaintiff may 

bring a tort action for damages alleging 

injury as a result of violation of the 

Track Safety Standards, such as train 

speed exceeding the maximum speed 

permitted under 49 CFR 213.9 over the 

class of track being traversed. Similarly, 

under Section 20106(b)(1)(B), a private 

plaintiff may bring a tort action for 

damages alleging injury as a result of 

violation of a railroad’s CWR plan 

required by the Track Safety Standards 

(the key issue in Lundeen). Provisions of 

a railroad’s CWR plan which exceed the 

requirements of this part are not 

included in the Federal standard of care. 

Under Section 20106(b)(1)(C), a private 

plaintiff may bring a tort action for 

damages alleging injury as a result of 

violation of a State law, regulation, or 

order that is not incompatible with 

subsection (a)(2), such as Ohio’s 

regulation of minimum track clearances 

in rail yards found not to be preempted 

in Tyrrell v. Norfolk Southern Ry. Co., 

248 F.3d 517 (6th Cir. 2001). 

It is a settled principle of statutory 

construction that, if the statute is clear 

and unambiguous, it must be applied 

according to its terms. Carcieri v. 

Salazar, 555 U.S.—(2009). Read by 

itself, Section 20106(a) preempts State 

standards of care, but does not expressly 

state whether anything replaces the 

preempted standards of care for 

purposes of tort suits. The focus of that 

provision is clearly on who regulates 

railroad safety: The Federal government 

or the States. It is about improving 

railroad safety, for which Congress 

deems nationally uniform standards to 

be necessary in the great majority of 

cases. That purpose has collateral 

consequences for tort law which new 

Section 20106 subsections (b) and (c) 

address. New subsection (b)(1) creates 

three exceptions to the possible 

consequences flowing from subsection 

(a). One of those exceptions ((b)(1)(B)) 

precisely addresses an issue presented 

in Lundeen Congress wished to rectify: 

it allows plaintiffs to sue a railroad in 

tort for violation of its own plan, rule, 

or standard that it created pursuant to 

a regulation or order issued by either of 

the Secretaries. That provision satisfies 

the arguments made in the Petition 

concerning the State tort claims 

Congress intended to preserve. None of 

those exceptions covers a plan, rule, or 

standard that a regulated entity creates 

for itself in order to produce a higher 

level of safety than Federal law requires, 

and such plans, rules, or standards were 

not at issue in Lundeen. The key 

concept of Section 20106(b) is 

permitting actions under State law 

seeking damages for personal injury, 

death, or property damage to proceed 

using a Federal standard of care. A plan, 

rule, or standard that a regulated entity 

creates pursuant to a Federal regulation 

logically fits the paradigm of a Federal 

standard of care—Federal law requires it 

and determines its adequacy. A plan, 

rule, or standard, or portions of one, that 

a regulated entity creates on its own in 

order to exceed the requirements of 

Federal law does not fit the paradigm of 

a Federal standard of care—Federal law 

does not require it and, past the point 

at which the requirements of Federal 

law are satisfied, says nothing about its 

adequacy. That is why FRA believes 

Section 20106(b)(1)(B) covers the 

former, but not the latter. The basic 

purpose of the statute—improving 

railroad safety—is best served by 

encouraging regulated entities to do 

more than the law requires and would 


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3Truck hunting is a rapid oscillation of a car 

truck usually occurring at speeds in excess of 45 

miles per hour in cars that are empty or lightly 

loaded, where the flanges tend to ride up on the 

head of the rail. 

be disserved by increasing the potential 

tort liability of regulated entities that 

choose to exceed Federal standards, 

which would discourage them from ever 

exceeding Federal standards again. 

In this manner, Congress adroitly 

preserved its policy of national 

uniformity of railroad safety regulation 

expressed in Section 20106(a)(1) and 

assured plaintiffs in tort cases involving 

railroads, such as Lundeen, of their 

ability to pursue their cases by 

clarifying that Federal railroad safety 

regulations preempt the standard of 

care, not the underlying causes of action 

in tort. Under this interpretation, all 

parts of the statute are given meanings 

that work together effectively and serve 

the safety purposes of the statute. 

Because the language of the statute is 

clear, there is no need to resort to the 

legislative history to properly interpret 

the statute. See Ratzlaf v. United States, 

510 U.S. 135, 147–148 (1994) (‘‘[W]e do 

not resort to legislative history to cloud 

a statutory text that is clear’’). 

Disapproval of CWR plans 

BMWED strongly argued that it 

believes that FRA should disapprove, 

for cause stated, CWR plans within a 

specific time period so as not to allow 

a non-conforming plan to remain in 

effect for an extended period of time. 

Should manpower at FRA be an 

impediment to incorporating such 

specific time frames for disapproval of 

all track owners’ CWR plans, BMWED 

argues that FRA should, at a minimum, 

adopt its suggested time frame of review 

of 5 months for Class I railroads, 10 

months for Class II railroads, and 15 

months for Class III railroads. 

FRA appreciates BMWED’s concerns, 

and has developed a good solution to 

this issue. FRA decided to have this 

final rule effective at different dates 

based on the Class of railroad. This final 

rule is effective 45 days after the 

publication date for Class I railroads, 90 

days after the publication date for Class 

II railroads, and 180 days after the 

publication date for Class III railroads. 

Also, FRA has developed a new section, 

213.118, which more clearly outlines 

FRA’s plan review and approval 

process. Please see the extensive 

discussion on this section below. 

CWR Joint Bolt Requirements 

The AAR is not in favor of including 

§ 213.119(c), which describes CWR joint 

installation and maintenance 

procedures, contending that its 

inclusion robs the industry of necessary 

future flexibility. These representatives 

did not believe it was necessary to 

incorporate the text into the rule if FRA 

knew that they had already proposed to 

add the text to their individual CWR 

plans. The AAR members in the 

Working Group also argued this point 

during the meetings, stating that 

including this paragraph constituted 

‘‘regulatory creep.’’ BMWED, on the 

other hand, agreed with the proposed 

text. FRA strongly feels that inclusion of 

the paragraph is necessary. With the 

history of high-profile derailments on 

CWR due to joint bar failure, as 

discussed in the October 11, 2006 final 

rule (71 FR 59677), FRA stresses the 

importance for CWR track owners to 

follow the installation and maintenance 

procedures in this paragraph. FRA also 

notes that the maintenance procedures 

were analyzed and discussed at length 

by the Working Group and found to 

represent sound industry guidance to 

avoid a derailment on CWR track due to 

poor joint installation or maintenance. 

The BMWED mentioned that 

§ 213.119(c)(3) should specify ‘‘bar(s)’’ 

instead of ‘‘bar.’’ FRA agrees with this 

assessment and has changed the final 

rule text accordingly. FRA has also 

elected to slightly revise the text to 

make the requirements more uniform. 

Rail Neutral Temperature 

In its comment, Metra argues that 

hunting,3 a significant source for 

imposed dynamic lateral loading, 

typically occurs in lightly loaded 

commuter cars at about 60 mph in 

contrast to the typical onset of hunting 

in freight cars at about 40 mph. The 

commenter suggests that, for passenger 

and commuter trains, ‘‘Rail that has 

pulled apart, broken, or been cut for 

defect removal must be readjusted such 

that its neutral temperature is within the 

safe range. If the rail has not been so 

readjusted before the rail temperature 

exceeds a prescribed value, the railroad 

would either: (1) Apply a speed 

restriction of 25 mph, or (2) apply a 

speed restriction reducing the speed by 

one class of track or operate at 40 mph, 

whichever was greater, in conjunction 

with a daily inspection of the rail made 

during the heat of the day.’’ Thus, 

commuter railroads would reduce speed 

to 60 mph for passenger operations and 

inspect the location during the heat of 

the day or otherwise have to reduce the 

speed to 25 mph if the inspection could 

not be done during the heat of the day. 

FRA responds that, while this is an 

important issue, it is not one that the 

agency has chosen to cover in the final 

regulatory text. The issue was 

mentioned in FRA’s preamble 

discussion of the NPRM as an example 

of a technical issue that the Working 

Group discussed. FRA highlighted this 

issue as one that the agency would take 

into consideration when reviewing CWR 

plans. Pursuant to § 213.119(f), the track 

owner must describe in its plan 

procedures which govern train speed on 

CWR track when maintenance work, 

track rehabilitation, track construction, 

or any other event occurs which 

disturbs the roadbed or ballast section 

and reduces the lateral or longitudinal 

resistance of the track, and the 

difference between the average rail 

temperature and the average rail neutral 

temperature is in a range that causes 

buckling-prone conditions to be present 

at a specific location. FRA instructs all 

track owners to specifically describe in 

their plans how they intend to do this. 

FRA will review all plans for 

compliance with § 213.119(f). 

Inspection Interval 

AAR proposes that FRA return to the 

‘‘intent of the current regulations and 

RSAC’s intent by requiring railroads to 

specify when inspections should occur 

due to ambient temperature.’’ AAR 

argues that FRA offers no explanation of 

why it proposes to require railroads to 

specify an inspection interval at 

§ 213.119(g)(2) or what it expects 

railroads to do to comply with such a 

requirement. FRA understands the 

confusion that the wording in the NPRM 

could have caused. Therefore, FRA has 

slightly modified the text in response to 

AAR’s comment. The final rule states 

that the plan must ‘‘specify when the 

inspections will be conducted.’’ 

Fracture Reports 

NTSB noted that a track owner must 

generate a Fracture Report for every 

cracked or broken CWR joint bar and 

conduct special inspections to locate the 

defective joint bar. The track owner then 

sends this data to FRA for review and 

analysis so that FRA can assess the 

validity of joint bar inspections and 

determine their proper frequency or 

adjustment. NTSB is concerned that, 

after February 10, 2010, a track owner 

may petition FRA to conduct a technical 

conference to review the Fracture 

Report data and to assess whether there 

is a continued need for the collection of 

data. NTSB is concerned that FRA may 

authorize track owners to discontinue 

collecting fracture data that could help 

evaluate whether a railroad’s CWR plan 

adequately addresses problematic joints. 

NTSB argues that the collection and 

assessment of fracture data are 

important and should continue. 

FRA appreciates NTSB’s concern with 

regard to the importance of Fracture 


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Reports, and also notes that FRA did not 

change the requirement of Fracture 

Reports with this final rule. Indeed, a 

track owner must continue to submit a 

Fracture Report to FRA for every 

cracked or broken CWR joint bar that is 

discovered during the course of an 

inspection pursuant to §§ 213.119(h), 

213.233 or 213.235 on track that is 

required under § 213.119(h)(6)(i) to be 

inspected. FRA believes that NTSB’s 

concern is premature for purposes of 

this rulemaking. FRA advises that the 

appropriate time to bring forth this 

concern would be at a technical 

conference called by FRA to assess 

whether there is a continued need for 

the collection of Fracture Report data. 

Additional Comments 

NTSB pointed out that, under 

§ 213.119, a track owner could submit 

one plan to FRA, but then operate using 

a more restrictive plan. NTSB strongly 

argued that allowing a track owner to 

operate with two sets of CWR plans was 

not in the best interest of safety. 

Although FRA agrees with NTSB’s 

comment that it is confusing to have 

two standards, FRA points out that the 

Track Safety Standards are minimum 

standards, and that the track owner is 

free to voluntarily follow more 

restrictive standards as a best practice. 

AAR proposed that FRA eliminate the 

text at the end of § 213.121(f), which 

states that ‘‘locations when over 400 feet 

in length (with no-slip, joint-to-rail 

contact), are considered to be 

continuous welded rail track and shall 

meet all the requirements for 

continuous welded rail track prescribed 

in this part.’’ FRA has always 

considered no-slip joint-to-rail contact 

designed joints to not be a break in rail 

continuity, and thus be defined as CWR. 

To avoid any confusion on this issue, 

FRA has elected to leave this portion of 

§ 213.121(f) intact. 

AAR also proposed that FRA delete 

the last sentence in § 213.119(k), which 

requires that CWR procedures be 

‘‘maintained in one engineering 

standards and procedures manual.’’ 

AAR claimed that it is not necessary to 

have all engineering standards and 

procedures in one document, but agrees 

that there is a benefit to having all CWR 

standards and procedures in one 

document. FRA agrees with this 

concern, and has changed the text to 

specify that CWR procedures be 

‘‘maintained in one CWR standards and 

procedures manual.’’ 

Errata 

Multiple commenters pointed out that 

the table at § 213.119(h)(6) contains 

inadvertent errors, which FRA has 

corrected with this final rule. 

VI. Section-by-Section Analysis 

Section 213.7 Designation of Qualified 

Persons to Supervise Certain Renewals 

and Inspect Track 

FRA is revising § 213.7 principally by 

adding a new paragraph (c), which 

creates a new requirement for the track 

owner to specifically designate 

individuals who are qualified to inspect 

CWR track or supervise the installation, 

adjustment, and maintenance of CWR 

track in accordance with the track 

owner’s written procedures. This 

paragraph require that the designated 

individual have: (1) Current 

qualifications under either paragraphs 

(a) or (b) of this section; (2) successfully 

completed a comprehensive training 

course specifically developed for the 

application of written CWR procedures 

issued by the track owner; (3) 

demonstrated to the track owner that 

he/she knows and understands the 

requirements of the written CWR 

procedures, can detect deviations from 

those requirements, and can prescribe 

appropriate remedial action(s) to correct 

or safely compensate for those 

deviations; and (4) written authorization 

from the track owner to prescribe 

remedial action(s) to correct or safely 

compensate for deviations from the 

requirements in the CWR procedures 

and successfully completed a recorded 

examination on the procedures as part 

of the qualification process to be made 

available to FRA. 

FRA has determined that, as CWR 

track has characteristics inherently 

different than those of traditional 

jointed rail, track owners should be 

required to designate which individuals 

are specifically qualified to inspect, or 

supervise the installation, adjustment, 

and maintenance of CWR. In addition to 

the qualifications that an individual 

must have under paragraph (a) to 

perform track maintenance work, or the 

qualifications under paragraph (b) to 

inspect track, an individual designated 

under paragraph (c) will have to be 

well-versed in the maintenance of CWR 

track as detailed in the track owner’s 

CWR plan. 

For guidance, FRA originally looked 

to § 213.305(c), which regulates the 

requirements of an individual qualified 

to inspect CWR track or supervise the 

installation, adjustment, and 

maintenance of CWR in accordance 

with the track owner’s written 

procedures for train operations at track 

classes 6 and higher. The Working 

Group discussed the merits of the 

requirement in § 213.305(c)(2), which 

states that an individual must have 

‘‘successfully completed a training 

course of at least eight hours duration 

specifically developed for the 

application of written CWR procedures 

issued by the track owner.’’ Carrier 

representatives maintained that the 

requirement to have an eight-hour 

course would interfere with current 

training methods. As the FRA 

representatives agreed that the 

comprehensive nature of the training 

course is more important than its 

duration, the Working Group reached 

consensus that the individual would 

have to successfully complete a 

comprehensive training course pursuant 

to paragraph (c)(2), which does not 

specify the duration of the training. 

The Working Group also discussed 

the merits of requiring the individual to 

successfully complete an examination 

on the track owner’s CWR procedures. 

In § 213.305(c)(4), individuals qualified 

on CWR for train operations at track 

classes 6 and higher must successfully 

complete a recorded examination on the 

track owner’s CWR procedures. The 

paragraph states that this examination 

may be written, or it may be a computer 

file with the results of an interactive 

training course. Working Group 

members were concerned with the 

proposal that the examination be in a 

written context. It was argued that, quite 

often, a supervisor can better test 

someone’s knowledge through practical 

application in the field as opposed to a 

written test. In order to accommodate 

this option for testing, FRA agreed to 

define the required examination in 

paragraph (c)(4) as ‘‘recorded’’ instead 

of written; therefore, track owners will 

have the flexibility to test an 

individual’s knowledge how they best 

see fit. However, it should be noted that 

the results of the examination must be 

recorded so that FRA may inspect the 

basis for the qualification of an 

individual under paragraph (c). 

In adding paragraph (c) to this 

section, FRA is redesignating former 

paragraphs (c) and (d) as paragraphs (d) 

and (e), respectively. FRA is also 

making conforming changes to these 

paragraphs to cross-reference the new 

paragraph (c), in the same way that the 

former paragraphs of this section are 

cross-referenced. Although FRA is 

setting out the entire text of these 

paragraphs for clarity, the changes to the 

redesignated paragraphs involve only 

adding the cross-reference to the 

introductory text of the paragraphs, and 

removing the superfluous reference ‘‘of 

this part’’ in redesignated paragraph 

(d)(4). 


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4See 49 CFR 213.121(e), stating that, in the case 

of CWR, each rail shall be bolted with at least two 

bolts at each joint. This is a total of four bolts 

required at each joint. 

Section 213.118 Continuous Welded 

Rail (CWR); Plan Review and Approval 

FRA is amending the Track Safety 

Standards by adding new § 213.118. 

FRA determined to cover the plan 

review and approval process in 

§ 213.118, and the required contents of 

the plan in § 213.119. This section 

delineates the process for submitting a 

CWR plan for approval to FRA. 

Paragraph (a). In this paragraph, FRA 

requires that each track owner with 

track constructed of CWR must have in 

effect and comply with a plan that 

contains written procedures which 

address: The installation, adjustment, 

maintenance, and inspection of CWR; 

inspection of CWR joints; and a training 

program for the applications of those 

procedures. This paragraph is based on 

the text that formerly appeared at 

§ 213.119. FRA has not changed the 

substance of this requirement. 

Paragraph (b). In this paragraph, FRA 

explains that the track owner must file 

its CWR plan with the FRA Associate 

Administrator for Railroad Safety/Chief 

Safety Officer (‘‘Associate 

Administrator’’). Within 30 days of 

receipt of the submission, FRA will 

review the plan for compliance with 

this subpart. FRA will approve, 

disapprove or conditionally approve the 

submitted plan, and will provide 

written notice of its determination. 

During Working Group discussions, 

FRA representatives expressed concern 

that this section’s current introductory 

text does not explicitly address certain 

procedural issues associated with CWR 

plans. The previous text did not explain 

how a track owner would revise a CWR 

plan that has already been submitted to 

FRA, or what the process would be for 

FRA to require a revision to a plan, 

including the process to appeal a 

revision requirement. FRA is therefore 

clarifying that a track owner must file its 

CWR plan with the FRA Associate 

Administrator not less than 30 days 

before it implements its CWR plan, 

including submitting revisions to an 

existing CWR plan in order for the 

changes to take effect under the 

regulation. 

In this paragraph, FRA decided that a 

plan may also be conditionally 

approved. FRA recognizes that there 

might be instances where it would be 

beneficial for the agency to 

conditionally approve a plan. For 

example, the agency might decide that 

a plan should be approved, but might 

need to look into new technology 

proposed in the plan. It is FRA’s intent 

to later approve or disapprove a plan 

that it conditionally approves. FRA also 

intends to notify the track owner of a 

conditionally approved plan of the time 

that the agency anticipates it will 

require in order to make a final 

determination. So that FRA does not 

stall the implementation of a plan that 

would otherwise be approved, FRA has 

decided to allow a plan to be 

conditionally approved. 

Paragraph (c). In this paragraph, FRA 

states that the track owner’s existing 

plan shall remain in effect until the 

track owner’s new plan is approved or 

conditionally approved and is effective 

pursuant to paragraph (d). In the 

Working Group discussions, it was 

brought up that FRA had previously 

been unclear in what plan would be in 

effect while FRA reviewed a new plan. 

In this new paragraph, FRA clarifies that 

the track owner’s existing plan is to 

remain in effect until the new plan is 

approved or conditionally approved and 

is in effect. 

Paragraph (d). In this paragraph, FRA 

states that the track owner must, upon 

receipt of FRA’s approval or conditional 

approval, establish the plan’s effective 

date. The paragraph also requires that 

the track owner advise, in writing, FRA 

and all affected employees of the 

effective date. FRA decided to 

promulgate this provision because track 

owners have expressed to FRA that they 

needed time to implement a plan once 

FRA has approved it. Indeed, FRA 

recognizes the time and effort that it 

takes to issue a new CWR plan, and 

wants to ensure that track owners have 

the time to do this once a new CWR 

plan is approved by FRA. Therefore, 

FRA has decided to let the track owner 

establish an effective date of its 

approved or conditionally approved 

CWR plan provided that FRA and all 

affected employees are advised of the 

effective date in writing. 

Paragraph (e). In this paragraph, for 

cause stated, FRA may, subsequent to 

plan approval or conditional approval, 

require revisions to the plan to bring the 

plan into conformity with this subpart. 

Notice of a revision requirement shall be 

made in writing and specify the basis of 

FRA’s requirement. The track owner 

may, within 30 days of the revision 

requirement, respond and provide 

written submissions in support of the 

original plan. FRA renders a final 

decision in writing. Not more than 30 

days following any final decision 

requiring revisions to a CWR plan, the 

track owner shall amend the plan in 

accordance with FRA’s decision and 

resubmit the conforming plan. The 

conforming plan becomes effective upon 

its submission to FRA. 

If the review indicates that revisions 

to the plan are needed to bring the plan 

into compliance with the requirements 

of the rule, FRA will give notice of the 

revision requirement in writing to the 

track owner, including the basis of the 

revision requirement. FRA believes that 

this paragraph clarifies the process it 

will use when requiring CWR plans to 

be revised. It should be noted that, 

unlike when a plan is approved or 

conditionally approved, when a 

conforming plan that has been revised is 

submitted to FRA, it becomes effective 

on that date. 

Section 213.119 Continuous Welded 

Rail (CWR); Required Plan Contents 

FRA moved the text pertaining to 

CWR plan review and approval to new 

§ 213.118. The introductory text to this 

section now states that the track owner 

must comply with the contents of the 

CWR plan approved or conditionally 

approved under § 213.118. 

Paragraphs (a) and (b). Paragraphs (a) 

and (b) are published in their entirety 

with no changes. 

Paragraph (c). FRA is designating 

previous paragraph (c) as paragraph (d), 

and adding a new paragraph (c) in its 

place. New paragraph (c) revises the 

requirements for CWR joint installation 

and maintenance procedures to be 

included in a track owner’s CWR plan. 

The new paragraph requires that rail 

joints be installed per the requirement 

in § 213.121(e), which states, ‘‘In the 

case of continuous welded rail track, 

each rail shall be bolted with at least 

two bolts at each joint.’’ The new 

paragraph further states that, in the case 

of a bolted joint installed during CWR 

installation after the publication date of 

the final rule, within 60 days the track 

owner must either: (1) Weld the joint; 

(2) install a joint with six bolts; 4 or (3) 

anchor every tie 195 feet in both 

directions of the joint. Finally, the new 

paragraph states that, in the case of a 

bolted joint in CWR experiencing 

service failure or a failed bar with a rail 

gap present, the track owner must 

either: (1) Weld the joint; or (2) replace 

the broken bar(s), replace the broken 

bolts, adjust anchors and weld the joint 

within 30 days; or (3) replace the broken 

bar(s), replace the broken bolts, install 

one additional bolt per rail end, and 

adjust the anchors; or (4) replace the 

broken bar(s), replace the broken bolts, 

and anchor every tie 195 feet in both 

directions from the CWR joint; or (5) 

replace the broken bar(s), replace the 

broken bolt(s), add rail with provisions 

for later adjustment pursuant to (d)(2) of 

this section, and reapply anchors. Per 


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BMWED’s comment, FRA is adding the 

option of ‘‘bars’’ to (c)(3) and (c)(4) and 

making other modifications to the 

wording of this requirement. 

FRA noted during Working Group 

discussions that this section lacked an 

explicit reference to how a rail joint in 

CWR shall be bolted. As this 

requirement appears in § 213.121(e), 

FRA decided that it would be prudent 

to also state this requirement in 

§ 213.119 so as to include all 

requirements for CWR in one section. 

This requirement serves as a reminder 

to track owners that they cannot create 

their own joint bolt requirements in 

their CWR plans that are less restrictive 

than those specified in the regulation. 

As previously mentioned, the 

Working Group was not able to reach 

consensus on paragraph (c). However, 

virtually identical text was included 

and discussed in the generic CWR plan 

generated by the rail carrier 

representatives, as discussed above. The 

rail carrier representatives were not in 

favor of including this paragraph, 

contending that its inclusion would 

constitute ‘‘regulatory creep.’’ These 

representatives did not believe it was 

necessary to incorporate the text into 

the rule if FRA knew that they had 

already proposed to add the text to their 

individual CWR plans. AAR argued this 

same point in its comment on the 

NPRM. BMWED, on the other hand, 

agreed with the proposed text. FRA 

strongly feels that inclusion of the 

paragraph is necessary. With the history 

of high-profile derailments on CWR due 

to joint bar failure, as discussed in the 

October 11, 2006 final rule (71 FR 

59677), FRA stresses the importance for 

CWR track owners to follow the 

installation and maintenance 

procedures in this paragraph. FRA also 

notes that the maintenance procedures 

were analyzed and discussed at length 

by the Working Group and found to 

represent sound industry guidance to 

avoid a derailment on CWR track due to 

poor joint installation or maintenance. 

Paragraph (d). FRA is redesignating 

previous paragraph (c) as paragraph (d). 

No substantive change to this 

paragraph’s requirements is intended. 

Paragraph (e). FRA is redesignating 

previous paragraph (d) as paragraph (e). 

No substantive change to this 

paragraph’s requirements is intended. 

Paragraph (f). FRA is redesignating 

previous paragraph (e) as paragraph (f). 

FRA is also revising paragraph (f)’s 

format to more clearly identify its 

requirements and add a new paragraph 

(f)(2) which requires the track owner to 

have procedures in the CWR plan that 

govern train speed when the difference 

between the average rail temperature 

and the rail neutral temperature is in a 

range that causes buckling-prone 

conditions to be present at a specific 

location. ‘‘Rail temperature’’ is defined 

as ‘‘the temperature of the rail, 

measured with a rail thermometer,’’ 

and, as discussed in redesignated 

paragraph (l), below, FRA is adding a 

definition for ‘‘rail neutral temperature’’ 

(RNT) as ‘‘the temperature at which the 

rail is neither in compression nor in 

tension.’’ When maintaining the 

integrity of CWR track, the track owner 

needs to be concerned not only with the 

actual rail temperature, but also with 

the rail neutral temperature. FRA notes 

that the track owner also has the 

responsibility to quantify the rail 

neutral temperature of all CWR track. 

There have been a significant number 

of derailments caused by buckled track. 

Because of this safety concern, FRA is 

requiring track owners to reduce train 

speed over areas where there is an 

increased possibility of track buckling. 

By reducing the train speed, FRA 

anticipates that track owners will be 

able to reduce the probability of a 

catastrophic derailment caused by track 

buckling. 

Paragraph (g). FRA is redesignating 

previous paragraph (f) as paragraph (g). 

FRA is also revising the requirements of 

this paragraph by specifying that track 

owners must have in their CWR plans 

procedures which prescribe when 

physical track inspections are to be 

performed to detect not only bucklingprone conditions, but also pull-apart 

prone conditions. 

This paragraph previously focused 

only on when physical track inspections 

were required to identify bucklingprone conditions in CWR track. The 

requirements for these inspections to 

detect buckling-prone conditions have 

not been changed. In paragraph (g)(1)(i), 

track owners are still be required to 

have procedures in their CWR plans that 

address inspecting track to identify 

buckling-prone conditions in CWR, 

which include: (A) Locations where 

tight or kinky rail conditions are likely 

to occur, and (B) locations where track 

work of the nature described in 

redesignated paragraph (f)(1) of this 

section have recently been performed. 

As discussed above, redesignated 

paragraph (f)(1) describes maintenance 

work, track rehabilitation, track 

construction, or any other event which 

disturbs the roadbed or ballast section 

and reduces the lateral or longitudinal 

resistance of the track. The track owner 

also continues to specify when the 

inspections will be conducted as well as 

the appropriate remedial actions to be 

taken when buckling-prone conditions 

are found, as provided in paragraph 

(g)(2), discussed further below. 

Pull-apart prone conditions are 

addressed with the addition of 

paragraph (g)(1)(ii), which requires the 

track owner to include procedures in its 

CWR plan that prescribe when physical 

track inspections are to be performed to 

identify pull-apart prone conditions in 

CWR track. The procedures must 

include locations where pull-apart or 

stripped-joint rail conditions are likely 

to occur. As provided in paragraph 

(g)(2), the track owner must also specify 

when the inspections will be conducted 

and the appropriate remedial actions to 

be taken when pull-apart prone 

conditions are found. Paragraph (g)(2) is 

based on the previous text of paragraph 

(f)(2), which addressed buckling-prone 

conditions, expanding it to address pullapart prone conditions as well. 

The Working Group discussed that 

changes in temperature can greatly 

affect the integrity of CWR. Typically, 

significant increases in rail temperature 

can cause buckling-prone conditions, 

and significant decreases in rail 

temperature can cause pull-apart prone 

conditions. FRA has chosen not to 

quantify the specific temperatures that 

would cause a buckling-prone condition 

or a pull-apart prone condition. The 

Working Group discussed that, given 

the varied geographical composition of 

each railroad entity, specifying these 

temperatures would be best left to the 

track engineering program of each track 

owner. Therefore, FRA has declined to 

specify at what temperatures a physical 

track inspection under paragraph (g)(1) 

would be required, choosing instead to 

require that the track owner identify the 

conditions and situations when a 

physical track inspection would need to 

occur due to a buckling-prone or pullapart prone condition. 

Paragraph (h). FRA is redesignating 

previous paragraph (g) as paragraph (h). 

FRA is not substantively changing the 

requirements of this paragraph. FRA is 

only making conforming amendments to 

cross-references in this paragraph to 

reflect the redesignation of the 

paragraphs in the section. 

Paragraph (i). FRA is redesignating 

previous paragraph (h) as paragraph (i). 

FRA is also revising this paragraph by 

requiring the track owner to have in 

effect a comprehensive training program 

for the application of its written CWR 

procedures with provisions for annual 

re-training for individuals designated 

under § 213.7(c) to supervise the 

installation, adjustment, and 

maintenance of CWR track and to 

perform inspections of CWR track. 

Additionally, FRA is requiring that the 

track owner make the training program 


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available for review by FRA upon 

request. 

This paragraph previously required 

that the track owner’s training program 

have provisions for ‘‘periodic’’ retraining of qualified individuals. The 

Working Group discussed this 

requirement and advised that the term 

‘‘periodic’’ was undesirably vague. A 

brief, informal survey at one of the 

Working Group meetings revealed that 

some rail carriers re-trained individuals 

every year, while others re-trained 

individuals every two or three years. 

FRA identified that a leading cause of 

carrier non-compliance with § 213.119 

is a lack of training among individuals 

qualified to supervise the installation, 

adjustment, and maintenance of CWR 

track and to perform inspections of 

CWR track. The AR Task Force’s study 

showed that a significant number of 

accidents/incidents could be attributed 

to the failure to comply with the track 

owner’s CWR policy. In order to address 

this serious safety concern, FRA 

determined that it was necessary to state 

more specifically when qualified 

individuals must be re-trained. 

Within the Working Group, FRA 

representatives proposed to revise this 

paragraph by specifying the months or 

days that should pass between the retraining of qualified individuals. Rail 

carrier representatives stated that this 

would not give them the flexibility to 

train individuals at pre-determined 

training classes and would add to 

operational costs. In order to address the 

concerns of the rail carrier 

representatives, FRA agreed that it 

would be sufficient to require annual retraining of individuals. FRA notes that, 

for purposes of this paragraph, ‘‘annual’’ 

means ‘‘calendar year,’’ as opposed to a 

365-day period. 

As FRA is amending § 213.7 to 

include paragraph (c) that explicitly 

addresses how a track owner designates 

an individual as qualified to supervise 

the installation, adjustment, and 

maintenance of CWR track and to 

perform inspections of CWR track, FRA 

decided that it was necessary to include 

a reference to § 213.7(c) in this revision 

to § 213.119(i). 

In paragraph (i), FRA is also requiring 

that the track owner make the training 

program available for review by FRA 

upon request. Due to the unique and 

individual nature of training programs, 

FRA determined that it would not be 

cost-effective for the agency to examine 

the training program of each track 

owner in addition to its CWR plan any 

time a change is made to the plan. 

However, particularly in the event of 

non-compliance with the CWR 

regulations, FRA believes that it should 

have the option of examining how 

qualified individuals are trained to 

apply the track owner’s written CWR 

procedures. 

During the Working Group’s meetings, 

Class I railroad representatives agreed to 

voluntarily make an initial submission 

of their CWR training programs to FRA. 

FRA also agreed that, in its Track Safety 

Standards Compliance Manual, track 

inspectors will be instructed not to 

request the training program of a 

specific track owner unless under the 

specific direction of FRA management. 

Rather, FRA’s headquarters staff will 

undertake the responsibility of 

obtaining and disseminating this 

information, as needed, to both FRA 

inspectors and inspectors from States 

participating in rail safety enforcement 

activities under 49 CFR part 212. 

Paragraph (j). FRA is redesignating 

previous paragraph (i) as paragraph (j). 

FRA is not substantively changing the 

requirements of this paragraph, 

however. FRA is only making a 

conforming change to the crossreference to another paragraph in this 

section, due to the redesignation of the 

paragraphs in this section, and to 

correct the cross-reference so that it 

references ‘‘this section’’—not ‘‘this 

part.’’ 

Paragraph (k). FRA is adding a new 

paragraph (k) that requires the track 

owner to make readily available, at 

every job site where personnel are 

assigned to install, inspect or maintain 

CWR, a copy of the track owner’s CWR 

procedures and all revisions, 

appendices, updates, and referenced 

materials related thereto prior to their 

effective date. Additionally, such CWR 

procedures are required to be issued and 

maintained in one comprehensive CWR 

standards and procedures manual. 

Since the implementation of the CWR 

regulations, FRA has noted that a 

number of rail carriers maintain two 

different sets of CWR procedures; rail 

carriers have been discovered to 

maintain the set of CWR procedures 

submitted to FRA pursuant to this 

§ 213.119, as well as maintain a separate 

set of CWR procedures to be used by 

personnel in the field. While FRA takes 

no issue with a rail carrier instructing 

its personnel to maintain more 

restrictive CWR procedures in the field 

than what is on file with FRA, FRA 

stresses that rail carriers are required to 

train their personnel on the plan on file 

with FRA. While FRA continues to 

enforce the CWR plan on file with its 

Office of Railroad Safety, having the 

procedures required to be at every job 

site where personnel are assigned to 

install, inspect or maintain CWR will 

ensure that personnel in the field 

understand which set of procedures 

FRA will hold them responsible for 

compliance with pursuant to the 

Federal regulations. Although FRA 

agrees with NTSB’s comment that it is 

confusing to have two standards, FRA 

points out that the Track Safety 

Standards are minimum standards, and 

that the track owner is free to 

voluntarily follow more restrictive 

standards as a best practice. 

Paragraph (l). FRA is redesignating 

former paragraph (j) as paragraph (l). 

This paragraph contains definitions to 

be used in connection with this section. 

FRA is revising two existing definitions, 

removing a definition, adding five new 

definitions, and making non-substantive 

changes to correct the capitalization of 

the definitions. Specifically, FRA is 

changing the definition of ‘‘continuous 

welded rail (CWR)’’ to mean ‘‘rail that 

has been welded together into lengths 

exceeding 400 feet. Rail installed as 

CWR remains CWR, regardless of 

whether a joint or plug is installed into 

the rail at a later time.’’ As a 

consequence of this change, FRA is also 

changing the definition of ‘‘CWR joint’’ 

to mean ‘‘any joint directly connected to 

CWR.’’ (‘‘CWR joint’’ had been defined 

as ‘‘(a) any joint directly connected to 

CWR, and (b) any joint(s) in a segment 

of rail between CWR strings that are less 

than 195 feet apart, except joints located 

on jointed sections on bridges.’’) 

The Working Group discussed that 

the current definition of CWR, which 

does not include a reference to a joint 

or plug, does not fully address the 

reality of CWR in the industry. When 

the previous definition of CWR was read 

with the previous definition of CWR 

joint, one could wrongly conclude that, 

by adding a joint or plug into a section 

of CWR track, the track would no longer 

be defined as CWR track. Indeed, it was 

agreed upon by the members of the 

Working Group that CWR track 

generally maintains its CWR properties 

whether or not a joint or plug is added 

to the track at a later date. Therefore, the 

Working Group recommended that the 

definition be revised to specify that rail 

installed as CWR remains as CWR, 

regardless of whether a joint or plug is 

installed into the rail at a later date. 

Due to the decision to revise the 

definition of CWR, the Working Group 

determined that the definition of CWR 

joint should also be revised. As the new 

definition of CWR would explain that 

CWR track remains as CWR, regardless 

of whether a joint or plug is installed 

into the rail at a later date, the definition 

of CWR joint would no longer need to 

specify that a CWR joint is a joint in a 

segment of rail between CWR strings 

that are less than 195 feet apart. Since 


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rail installed as CWR remains as CWR 

with the new definition, FRA is revising 

the definition of CWR joint to simply be 

‘‘any joint connected to CWR.’’ 

FRA is removing the definition 

‘‘action items,’’ because the term is not 

expressly used in this section. 

Previously, ‘‘actions items’’ were 

defined as ‘‘the rail joint conditions that 

track owners identify in their CWR 

plans pursuant to paragraph (g)(3) 

which require the application of a 

corrective correction.’’ Paragraph (g)(3) 

itself provides that, in formulating 

procedures which prescribe the 

scheduling and conduct of inspections 

to detect cracks and other indications of 

potential failures in CWR joints, the 

track owner specify the conditions of 

actual or potential joint failure for 

which personnel must inspect. Current 

paragraph (g)(3) further provides that 

these conditions include, at a minimum, 

the following items: (i) Loose, bent, or 

missing joint bolts; (ii) rail end batter or 

mismatch that contributes to instability 

of the joint; and (iii) evidence of 

excessive longitudinal rail movement in 

or near the joint, including, but not 

limited to, wide rail gap, defective joint 

bolts, disturbed ballast, surface 

deviations, gap between tie plates and 

rail, or displaced rail anchors. The term 

‘‘action items’’ is not used in this 

paragraph, however. FRA is 

redesignating paragraph (g)(3) as 

paragraph (h)(3), for formatting 

purposes only due to the addition of 

new paragraphs in this section. FRA 

does not intend to make any change to 

the substance of this paragraph, and 

removing the definition of ‘‘action 

items’’ is not intended to have any effect 

on what items are considered defects 

under the provisions of the rule. 

At the same time, FRA is adding the 

new definition of ‘‘rail neutral 

temperature’’ to mean ‘‘the temperature 

at which the rail is neither in 

compression nor tension.’’ This 

definition is necessary because FRA is 

adding new paragraph (f)(2), which 

utilizes the term ‘‘rail neutral 

temperature.’’ In paragraph (f)(2), FRA 

requires track owners to have 

procedures that govern train speed 

when the difference between the 

average rail temperature and the rail 

neutral temperature is in a range that 

causes buckling-prone conditions to be 

present at a specific location. When 

maintaining the integrity of CWR track, 

the track owner has to be concerned 

with not only the actual rail temperature 

of the rail, but the rail neutral 

temperature as well. FRA decided that 

it was necessary to include in the 

regulation a definition of rail neutral 

temperature to clarify what temperature 

the track owner should be concerned 

with when preventing rail buckling. 

While FRA has provided a definition of 

‘‘rail neutral temperature,’’ it is the 

responsibility of the track owner to 

quantify the rail neutral temperature at 

specific locations. 

FRA has also chosen to add a 

definition for ‘‘annual re-training.’’ In 

paragraph (i) of § 213.119, FRA requires 

that the track owner shall have in effect 

a comprehensive training program for 

the application of these written CWR 

procedures, with provisions for annual 

re-training, for those individuals 

designated under § 213.7(c) as qualified 

to supervise the installation, 

adjustment, and maintenance of CWR 

track and to perform inspections of 

CWR track. FRA notes that, for purposes 

of this paragraph, ‘‘annual’’ means 

‘‘calendar year,’’ as opposed to a 365- 

day period. 

Finally, FRA has also chosen to add 

a couple of definitions to clarify terms 

that are used throughout § 213.119. 

Specifically, FRA has added a definition 

for a ‘‘buckling- prone condition,’’ a 

‘‘pull-apart or stripped joint,’’ and a 

‘‘pull-apart prone condition.’’ A 

‘‘buckling-prone condition,’’ is when 

the actual rail temperature is above the 

actual rail neutral temperature, which 

will vary, given the geographical 

composition of the track. A ‘‘pull-apart 

or stripped joint’’ are interchangeable 

terms used to describe a condition 

where no bolts are mounted through the 

holes of a joint bar on the rail end, 

rendering the joint bar ineffective due to 

excessive expansive or contractive 

forces. A ‘‘pull-apart prone condition’’ 

is when the actual rail temperature is 

below the rail neutral temperature at or 

near a joint where longitudinal tensile 

forces may affect the fastenings at the 

joint. 

Appendix B to Part 213—Schedule of 

Civil Penalties 

Appendix B to part 213 contains a 

schedule of civil penalties for use in 

connection with this part. FRA is 

revising the schedule of civil penalties 

in issuing the final rule to reflect the 

addition of § 213.118 and revisions 

made to § 213.119. 

VII. Regulatory Impact 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This final rule has been evaluated in 

accordance with existing policies and 

procedures and determined to be nonsignificant under both Executive Order 

12866 and DOT policies and 

procedures. See 44 FR 11034; February 

26, 1979. As part of the regulatory 

impact analysis, FRA has assessed 

quantitatively the costs and benefits 

expected from the implementation of 

this final rule. FRA has determined that 

none of the provisions would have a 

major impact. If FRA’s main 

assumptions are correct, the sum of the 

net benefit of all provisions would be 

$390,000 per year. The cost per year is 

estimated at $300,000 for the first year, 

and $150,000 per year for subsequent 

years. The total net benefit would then 

be $90,000 for the first year and 

$240,000 per year for subsequent years. 

The analysis has a range of assumptions 

to check sensitivity. Under the least 

favorable assumptions the rule would 

develop net societal costs, but those are 

apparently extreme assumptions. Under 

the most favorable assumptions the net 

benefits would be up to $1,140,000 per 

year. In no event would the net benefits 

or costs constitute more than a very 

small portion of the total railroad 

expenditures on CWR rail maintenance. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(the Act) (5 U.S.C. 601 et seq.) requires 

a review of proposed and final rules to 

assess their impact on 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.’’ ‘‘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. SBA’s ‘‘Size 

Standards’’ may be altered by Federal 

agencies after consultation with SBA 

and in conjunction with public 

comment. Pursuant to that authority, 

FRA has published a final policy that 

formally establishes ‘‘small entities’’ as 

railroads which meet the line haulage 

revenue requirements of a Class III 

railroad. The revenue requirements are 

currently $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 (STB) 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. 

Approximately 200 small railroads 

have CWR and may be affected by this 

final rule. Relatively few Class III 

railroads have CWR. For the minority of 

Class III railroads that have CWR, the 

portion of each such railroad made up 


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of CWR is more likely to be small. To 

the extent these railroads have CWR, 

Class III railroads are subject to most of 

the provisions in this final rule. Small 

railroads were consulted during the 

RSAC Working Group deliberations and 

their interests have been taken into 

consideration in this final rule. FRA 

believes that there will be no significant 

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 19995, 

44 U.S.C. 3501 et seq. The sections that 

contain the new information collection 

requirements and the estimated time to 

fulfill each requirement are as follows: 

CFR Section Respondent 

universe 

Total annual 

responses 

Average time per 

response 

Total annual 

burden hours 

213.4—Excepted track 

—Designation of track as excepted ............................. 200 railroads ......... 20 orders .............. 15 minutes ............ 5 hours. 

—Notification to FRA about removal of excepted track 200 railroads ......... 15 notification ....... 10 minutes ............ 3 hours.

213.5—Responsibility of track owners ................................ 728 railroads ......... 10 notification ....... 8 hours ................. 80 hours. 

213.7—Designation of qualified persons to supervise certain renewals and inspect track 

—Designations ............................................................. 728 railroads ......... 1,500 names ......... 10 minutes ............ 250 hours. 

—Employees trained in CWR procedures (New) ........ 31 railroads ........... 80,000 tr. empl. .... 90 minutes ............ 120,000 hours. 

—Written authorizations and recorded exams (New) .. 31 railroads ........... 80,000 auth. + 

80,000 exams.

10 min. + 60 min .. 93,333 hours. 

—Designations (partially qualified) under paragraph 

(c) of this section.

31 railroads ........... 250 names ............ 10 minutes ............ 42 hours. 

213.17—Waivers ................................................................. 728 railroads ......... 6 petitions ............. 24 hours ............... 144 hours. 

213.57—Curves, elevation and speed limitations 

—Request to FRA for approval .................................... 728 railroads ......... 2 requests ............. 40 hours ............... 80 hours. 

—Notification to FRA with written consent of other affected track owners.728 railroads ......... 2 notifications ....... 45 minutes ............ 2 hours. 

—Test plans for higher curving speeds ....................... 1 railroad .............. 2 test plans ........... 16 hours ............... 32 hours. 

213.110—Gage restraint measurement systems (GRMS) 

—Implementing GRMS—notices & reports .................. 728 railroads ......... 5 notifications + 1 

tech rpt.

45 min./4 hours .... 8 hours. 

—GRMS vehicle output reports ................................... 728 railroads ......... 50 reports ............. 5 minutes .............. 4 hours. 

—GRMS vehicle exception reports .............................. 728 railroads ......... 50 reports ............. 5 minutes .............. 4 hours. 

—GRMS/PTLF—procedures for data integrity ............. 728 railroads ......... 4 proc. docs. ......... 2 hours ................. 8 hours. 

—GRMS training programs/sessions ........................... 728 railroads ......... 2 prog. + 5 sessions.16 hours ............... 112 hours. 

—GRMS inspection records ......................................... 728 railroads ......... 50 records ............ 2 hours ................. 100 hours. 

213.118 Continuous welded rail (CWR); plan review and 

approval 

—Plans w/written procedures for CWR (Amended) .... 728 railroads ......... 728 plans .............. 4 hours ................. 2,912 hours. 

—Notification to FRA and RR employees of CWR 

plan effective date (New).

728 RRs/80,000 

employees.

728 + 80,000 notifications.15 min.; 2 min. ..... 2,849 hours. 

—Written submissions after plan disapproval (New) ... 728 railroads ......... 20 submissions ..... 2 hours ................. 40 hours. 

—Final FRA disapproval and plan amendment (New) 728 railroads ......... 20 am. plans ......... 1 hour ................... 20 hours. 

213.119—Continuous welded rail (CWR); plan contents 

—Fracture Report for each broken CWR joint bar ...... 239 RRs/ASLRRA 12,000 reports ...... 10 minutes ............ 2,000 hours. 

—Petition for technical conference on Fracture Reports.1 RR association .. 1 petition ............... 15 minutes ............ .25 hour. 

—Training programs re CWR procedures. (Amended) 239 RRs/ASLRRA 240 am. tr. programs.1 hour ................... 240 hours. 

—Annual CWR training of employees (New) ............... 31 railroads ........... 80,000 tr. empl. .... 30 minutes ............ 40,000 hours. 

—Record keeping ......................................................... 239 railroads ......... 2,000 records ....... 10 minutes ............ 333 hours. 

—Record keeping for CWR rail joints .......................... 239 railroads ......... 360,000 rcds. ........ 2 minutes .............. 12,000 hours. 

—Periodic records for CWR rail joints ......................... 239 railroads ......... 480,000 rcds. ........ 1 minute ................ 8,000 hours. 

—Copy of track owner’s CWR procedures (New) ....... 728 railroads ......... 239 manuals ......... 10 minutes ............ 40 hours. 

213.233—Track inspections—Notations ............................. 728 railroads ......... 12,500 notations ... 1 minute ................ 208 hours. 

213.241—Inspection records ............................................... 728 railroads ......... 1,542,089 rcds. ..... Varies ................... 1,672,941 hours. 

213.303—Responsibility for compliance ............................. 2 railroads ............. 1 notification ......... 8 hours ................. 8 hours. 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. 

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, 

Washington, DC 20503, Attention: FRA 

Desk Officer. Comments may also be 

sent via e-mail to the Office of 

Management and Budget at the 

following address: oira_submissions@

omb.eop.gov. 

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 


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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 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132, ‘‘Federalism’’ (64 FR 43255, Aug. 

10, 1999). 

As discussed earlier in the preamble, 

this final rule creates requirements for 

the qualification of persons designated 

to inspect CWR track, or supervise the 

installation, adjustment, or maintenance 

of CWR track. This final rule also 

clarifies the procedures associated with 

the submission of CWR plans to FRA by 

track owners and specifies that these 

plans should add focus on inspecting 

CWR for pull-apart prone conditions, 

and on CWR joint installation and 

maintenance procedures. This final rule 

also makes other changes to the 

requirements governing CWR. 

Executive Order 13132 requires FRA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications’’. ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, the agency may not issue 

a regulation with federalism 

implications that imposes substantial 

direct compliance costs and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, the agency consults with 

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 determined that this final 

rule would not have substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, nor on the distribution of 

power and responsibilities among the 

various levels of government. In 

addition, FRA has determined that this 

final rule would not impose any direct 

compliance costs on State and local 

governments. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

However, this final rule has 

preemptive effect. 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 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 exception to Section 20106. 

The intent of Section 20106 is to 

promote national uniformity in railroad 

safety and security standards. 49 U.S.C. 

20106(a)(1). Thus, subject to a limited 

exception for essential local safety or 

security hazards, this final rule 

establishes a uniform Federal safety 

standard that must be met, and State 

requirements covering the same subject 

matter would be displaced, whether 

those State requirements are in the form 

of a State law, including common law, 

regulation, or order. 

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 preemption of State laws covering 

the subject matter of this final rule, 

which occurs by operation of law under 

Section 20106 whenever FRA issues a 

rule or order. 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 Section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and Tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law)’’. Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in 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 

$141,300,000] 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 $141,300,000 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 


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43002 Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations 

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 Rule 

■ For the reasons discussed in the 

preamble, FRA amends part 213 of 

chapter II, subtitle B of title 49 of the 

Code of Federal Regulations as follows: 

PART 213—[AMENDED] 

■ 1. The authority citation for part 213 

continues to read as follows: 

Authority: 49 U.S.C. 20102–20114 and 

20142; 28 U.S.C. 2461, note; and 49 CFR 

1.49(m). 

■ 2. Section 213.7 is amended by 

redesignating paragraphs (c) and (d) as 

paragraphs (d) and (e), respectively; 

adding new paragraph (c); and revising 

newly redesignated paragraphs (d) and 

(e) to read as follows: 

§ 213.7 Designation of qualified persons to 

supervise certain renewals and inspect 

track. 

* * * * * 

(c) Individuals designated under 

paragraphs (a) or (b) of this section that 

inspect continuous welded rail (CWR) 

track or supervise the installation, 

adjustment, and maintenance of CWR 

track in accordance with the written 

procedures of the track owner shall 

have: 

(1) Current qualifications under either 

paragraph (a) or (b) of this section; 

(2) Successfully completed a 

comprehensive training course 

specifically developed for the 

application of written CWR procedures 

issued by the track owner; 

(3) Demonstrated to the track owner 

that the individual: 

(i) Knows and understands the 

requirements of those written CWR 

procedures; 

(ii) Can detect deviations from those 

requirements; and 

(iii) Can prescribe appropriate 

remedial action to correct or safely 

compensate for those deviations; and 

(4) Written authorization from the 

track owner to prescribe remedial 

actions to correct or safely compensate 

for deviations from the requirements in 

those procedures and successfully 

completed a recorded examination on 

those procedures as part of the 

qualification process. 

(d) Persons not fully qualified to 

supervise certain renewals and inspect 

track as required in paragraphs (a) 

through (c) of this section, but with at 

least one year of maintenance-of-way or 

signal experience, may pass trains over 

broken rails and pull aparts provided 

that— 

(1) The track owner determines the 

person to be qualified and, as part of 

doing so, trains, examines, and reexamines the person periodically within 

two years after each prior examination 

on the following topics as they relate to 

the safe passage of trains over broken 

rails or pull aparts: rail defect 

identification, crosstie condition, track 

surface and alinement, gage restraint, 

rail end mismatch, joint bars, and 

maximum distance between rail ends 

over which trains may be allowed to 

pass. The sole purpose of the 

examination is to ascertain the person’s 

ability to effectively apply these 

requirements and the examination may 

not be used to disqualify the person 

from other duties. A minimum of four 

hours training is required for initial 

training; 

(2) The person deems it safe and train 

speeds are limited to a maximum of 10 

m.p.h. over the broken rail or pull apart; 

(3) The person shall watch all 

movements over the broken rail or pull 

apart and be prepared to stop the train 

if necessary; and 

(4) Person(s) fully qualified under 

§ 213.7 are notified and dispatched to 

the location promptly for the purpose of 

authorizing movements and effecting 

temporary or permanent repairs. 

(e) With respect to designations under 

paragraphs (a) through (d) of this 

section, each track owner shall maintain 

written records of— 

(1) Each designation in effect; 

(2) The basis for each designation; and 

(3) Track inspections made by each 

designated qualified person as required 

by § 213.241. These records shall be 

kept available for inspection or copying 

by the Federal Railroad Administration 

during regular business hours. 

■ 3. Section 213.118 is added to read as 

follows: 

§ 213.118 Continuous welded rail (CWR); 

plan review and approval. 

(a) Each track owner with track 

constructed of CWR shall have in effect 

and comply with a plan that contains 

written procedures which address: the 

installation, adjustment, maintenance, 

and inspection of CWR; inspection of 

CWR joints; and a training program for 

the application of those procedures. 

(b) The track owner shall file its CWR 

plan with the FRA Associate 

Administrator for Railroad Safety/Chief 

Safety Officer (Associate Administrator). 

Within 30 days of receipt of the 

submission, FRA will review the plan 

for compliance with this subpart. FRA 

will approve, disapprove or 

conditionally approve the submitted 

plan, and will provide written notice of 

its determination. 

(c) The track owner’s existing plan 

shall remain in effect until the track 

owner’s new plan is approved or 

conditionally approved and is effective 

pursuant to paragraph (d) of this 

section. 

(d) The track owner shall, upon 

receipt of FRA’s approval or conditional 

approval, establish the plan’s effective 

date. The track owner shall advise in 

writing FRA and all affected employees 

of the effective date. 

(e) FRA, for cause stated, may, 

subsequent to plan approval or 

conditional approval, require revisions 

to the plan to bring the plan into 

conformity with this subpart. Notice of 

a revision requirement shall be made in 

writing and specify the basis of FRA’s 

requirement. The track owner may, 

within 30 days of the revision 

requirement, respond and provide 

written submissions in support of the 

original plan. FRA renders a final 

decision in writing. Not more than 30 

days following any final decision 

requiring revisions to a CWR plan, the 

track owner shall amend the plan in 

accordance with FRA’s decision and 

resubmit the conforming plan. The 

conforming plan becomes effective upon 

its submission to FRA. 

■ 4. Section 213.119 is revised to read 

as follows: 

§ 213.119 Continuous welded rail (CWR); 

plan contents. 

The track owner shall comply with 

the contents of the CWR plan approved 

or conditionally approved under 

§ 213.118. The plan shall contain the 

following elements— 

(a) Procedures for the installation and 

adjustment of CWR which include— 

(1) Designation of a desired rail 

installation temperature range for the 

geographic area in which the CWR is 

located; and 


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(2) De-stressing procedures/methods 

which address proper attainment of the 

desired rail installation temperature 

range when adjusting CWR. 

(b) Rail anchoring or fastening 

requirements that will provide sufficient 

restraint to limit longitudinal rail and 

crosstie movement to the extent 

practical, and specifically addressing 

CWR rail anchoring or fastening 

patterns on bridges, bridge approaches, 

and at other locations where possible 

longitudinal rail and crosstie movement 

associated with normally expected 

train-induced forces, is restricted. 

(c) CWR joint installation and 

maintenance procedures which require 

that— 

(1) Each rail shall be bolted with at 

least two bolts at each CWR joint; 

(2) In the case of a bolted joint 

installed during CWR installation after 

August 25, 2009, the track owner shall 

either, within 60 days— 

(i) Weld the joint; 

(ii) Install a joint with six bolts; or 

(iii) Anchor every tie 195 feet in both 

directions from the joint; and 

(3) In the case of a bolted joint in 

CWR experiencing service failure or a 

failed bar with a rail gap present, the 

track owner shall either— 

(i) Weld the joint; 

(ii) Replace the broken bar(s), replace 

the broken bolts, adjust the anchors and, 

within 30 days, weld the joint; 

(iii) Replace the broken bar(s), replace 

the broken bolts, install one additional 

bolt per rail end, and adjust anchors; 

(iv) Replace the broken bar(s), replace 

the broken bolts, and anchor every tie 

195 feet in both directions from the 

CWR joint; or 

(v) Replace the broken bar(s), replace 

the broken bolts, add rail with 

provisions for later adjustment pursuant 

to paragraph (d)(2) of this section, and 

reapply the anchors. 

(d) Procedures which specifically 

address maintaining a desired rail 

installation temperature range when 

cutting CWR, including rail repairs, intrack welding, and in conjunction with 

adjustments made in the area of tight 

track, a track buckle, or a pull-apart. 

Rail repair practices shall take into 

consideration existing rail temperature 

so that— 

(1) When rail is removed, the length 

installed shall be determined by taking 

into consideration the existing rail 

temperature and the desired rail 

installation temperature range; and 

(2) Under no circumstances should 

rail be added when the rail temperature 

is below that designated by paragraph 

(a)(1) of this section, without provisions 

for later adjustment. 

(e) Procedures which address the 

monitoring of CWR in curved track for 

inward shifts of alinement toward the 

center of the curve as a result of 

disturbed track. 

(f) Procedures which govern train 

speed on CWR track when— 

(1) Maintenance work, track 

rehabilitation, track construction, or any 

other event occurs which disturbs the 

roadbed or ballast section and reduces 

the lateral or longitudinal resistance of 

the track; and 

(2) The difference between the 

average rail temperature and the average 

rail neutral temperature is in a range 

that causes buckling-prone conditions to 

be present at a specific location; and 

(3) In formulating the procedures 

under paragraphs (f)(1) and (f)(2) of this 

section, the track owner shall— 

(i) Determine the speed required, and 

the duration and subsequent removal of 

any speed restriction based on the 

restoration of the ballast, along with 

sufficient ballast re-consolidation to 

stabilize the track to a level that can 

accommodate expected train-induced 

forces. Ballast re-consolidation can be 

achieved through either the passage of 

train tonnage or mechanical 

stabilization procedures, or both; and 

(ii) Take into consideration the type of 

crossties used. 

(g) Procedures which prescribe when 

physical track inspections are to be 

performed. 

(1) At a minimum, these procedures 

shall address inspecting track to 

identify— 

(i) Buckling-prone conditions in CWR 

track, including— 

(A) Locations where tight or kinky rail 

conditions are likely to occur; and 

(B) Locations where track work of the 

nature described in paragraph (f)(1)(i) of 

this section has recently been 

performed; and 

(ii) Pull-apart prone conditions in 

CWR track, including locations where 

pull-apart or stripped-joint rail 

conditions are likely to occur; and 

(2) In formulating the procedures 

under paragraph (g)(1) of this section, 

the track owner shall— 

(i) Specify when the inspections will 

be conducted; and 

(ii) Specify the appropriate remedial 

actions to be taken when either 

buckling-prone or pull-apart prone 

conditions are found. 

(h) Procedures which prescribe the 

scheduling and conduct of inspections 

to detect cracks and other indications of 

potential failures in CWR joints. In 

formulating the procedures under this 

paragraph, the track owner shall— 

(1) Address the inspection of joints 

and the track structure at joints, 

including, at a minimum, periodic onfoot inspections; 

(2) Identify joint bars with visible or 

otherwise detectable cracks and conduct 

remedial action pursuant to § 213.121; 

(3) Specify the conditions of actual or 

potential joint failure for which 

personnel must inspect, including, at a 

minimum, the following items: 

(i) Loose, bent, or missing joint bolts; 

(ii) Rail end batter or mismatch that 

contributes to instability of the joint; 

and 

(iii) Evidence of excessive 

longitudinal rail movement in or near 

the joint, including, but not limited to; 

wide rail gap, defective joint bolts, 

disturbed ballast, surface deviations, 

gap between tie plates and rail, or 

displaced rail anchors; 

(4) Specify the procedures for the 

inspection of CWR joints that are 

imbedded in highway-rail crossings or 

in other structures that prevent a 

complete inspection of the joint, 

including procedures for the removal 

from the joint of loose material or other 

temporary material; 

(5) Specify the appropriate corrective 

actions to be taken when personnel find 

conditions of actual or potential joint 

failure, including on-foot follow-up 

inspections to monitor conditions of 

potential joint failure in any period 

prior to completion of repairs; 

(6) Specify the timing of periodic 

inspections, which shall be based on the 

configuration and condition of the joint: 

(i) Except as provided in paragraphs 

(h)(6)(ii) through (h)(6)(iv) of this 

section, track owners must specify that 

all CWR joints are inspected, at a 

minimum, in accordance with the 

intervals identified in the following 

table: 


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43004 Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Rules and Regulations 

MINIMUM NUMBER OF INSPECTIONS PER CALENDAR YEAR 1

Freight trains operating over track with an annual 

tonnage of: 

Passenger trains operating 

over track with an annual tonnage of: 

Less than 40 

mgt 40 to 60 mgt Greater than 60 mgt Less than 20 

mgt 

Greater than 

or equal to 20 

mgt 

Class 5 & above .................................................................. 2 3 2 4 2 3 2 32

Class 4 ................................................................................. 2 3 2 4 2 2 3 2

Class 3 ................................................................................. 1 2 2 2 2 

Class 2 ................................................................................. 0 0 0 1 1 

Class 1 ................................................................................. 0 0 0 0 0 

Excepted Track .................................................................... 0 0 0 n/a n/a 

4 = Four times per calendar year, with one inspection in each of the following periods: January to March, April to June, July to September, and 

October to December; and with consecutive inspections separated by at least 60 calendar days. 

3 = Three times per calendar year, with one inspection in each of the following periods: January to April, May to August, and September to December; and with consecutive inspections separated by at least 90 calendar days. 

2 = Twice per calendar year, with one inspection in each of the following periods: January to June and July to December; and with consecutive 

inspections separated by at least 120 calendar days. 

1 = Once per calendar year, with consecutive inspections separated by at least 180 calendar days. 

1Where a track owner operates both freight and passenger trains over a given segment of track, and there are two different possible inspection interval requirements, the more frequent inspection interval applies. 2When extreme weather conditions prevent a track owner from conducting an inspection of a particular territory within the required interval, the 

track owner may extend the interval by up to 30 calendar days from the last day that the extreme weather condition prevented the required 

inspection. 

(ii) Consistent with any limitations 

applied by the track owner, a passenger 

train conducting an unscheduled detour 

operation may proceed over track not 

normally used for passenger operations 

at a speed not to exceed the maximum 

authorized speed otherwise allowed, 

even though CWR joints have not been 

inspected in accordance with the 

frequency identified in paragraph 

(h)(6)(i) of this section, provided that: 

(A) All CWR joints have been 

inspected consistent with requirements 

for freight service; and 

(B) The unscheduled detour operation 

lasts no more than 14 consecutive 

calendar days. In order to continue 

operations beyond the 14-day period, 

the track owner must inspect the CWR 

joints in accordance with the 

requirements of paragraph (h)(6)(i) of 

this section. 

(iii) Tourist, scenic, historic, or 

excursion operations, if limited to the 

maximum authorized speed for 

passenger trains over the next lower 

class of track, need not be considered in 

determining the frequency of 

inspections under paragraph (h)(6)(i) of 

this section. 

(iv) All CWR joints that are located in 

switches, turnouts, track crossings, lift 

rail assemblies or other transition 

devices on moveable bridges must be 

inspected on foot at least monthly, 

consistent with the requirements in 

§ 213.235; and all records of those 

inspections must be kept in accordance 

with the requirements in § 213.241. A 

track owner may include in its § 213.235 

inspections, in lieu of the joint 

inspections required by paragraph 

(h)(6)(i) of this section, CWR joints that 

are located in track structure that is 

adjacent to switches and turnouts, 

provided that the track owner precisely 

defines the parameters of that 

arrangement in the CWR plans. 

(7) Specify the recordkeeping 

requirements related to joint bars in 

CWR, including the following: 

(i) The track owner shall keep a 

record of each periodic and follow-up 

inspection required to be performed by 

the track owner’s CWR plan, except for 

those inspections conducted pursuant to 

§ 213.235 for which track owners must 

maintain records pursuant to § 213.241. 

The record shall be prepared on the day 

the inspection is made and signed by 

the person making the inspection. The 

record shall include, at a minimum, the 

following items: the boundaries of the 

territory inspected; the nature and 

location of any deviations at the joint 

from the requirements of this part or of 

the track owner’s CWR plan, with the 

location identified with sufficient 

precision that personnel could return to 

the joint and identify it without 

ambiguity; the date of the inspection; 

the remedial action, corrective action, or 

both, that has been taken or will be 

taken; and the name or identification 

number of the person who made the 

inspection. 

(ii) The track owner shall generate a 

Fracture Report for every cracked or 

broken CWR joint bar that the track 

owner discovers during the course of an 

inspection conducted pursuant to 

§§ 213.119(g), 213.233, or 213.235 on 

track that is required under 

§ 213.119(h)(6)(i) to be inspected. 

(A) The Fracture Report shall be 

prepared on the day the cracked or 

broken joint bar is discovered. The 

Report shall include, at a minimum: the 

railroad name; the location of the joint 

bar as identified by milepost and 

subdivision; the class of track; annual 

million gross tons for the previous 

calendar year; the date of discovery of 

the crack or break; the rail section; the 

type of bar (standard, insulated, or 

compromise); the number of holes in the 

joint bar; a general description of the 

location of the crack or break in bar; the 

visible length of the crack in inches; the 

gap measurement between rail ends; the 

amount and length of rail end batter or 

ramp on each rail end; the amount of 

tread mismatch; the vertical movement 

of joint; and in curves or spirals, the 

amount of gage mismatch and the lateral 

movement of the joint. 

(B) The track owner shall submit the 

information contained in the Fracture 

Reports to the FRA Associate 

Administrator twice annually, by July 

31 for the preceding six-month period 

from January 1 through June 30 and by 

January 31 for the preceding six-month 

period from July 1 through December 

31. 

(C) After February 1, 2010, any track 

owner may petition FRA to conduct a 

technical conference to review the 

Fracture Report data submitted through 

December of 2009 and assess whether 

there is a continued need for the 

collection of Fracture Report data. The 

track owner shall submit a written 


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request to the Associate Administrator, 

requesting the technical conference and 

explaining the reasons for proposing to 

discontinue the collection of the data. 

(8) In lieu of the requirements for the 

inspection of rail joints contained in 

paragraphs (h)(1) through (h)(7) of this 

section, a track owner may seek 

approval from FRA to use alternate 

procedures. 

(i) The track owner shall submit the 

proposed alternate procedures and a 

supporting statement of justification to 

the Associate Administrator. 

(ii) If the Associate Administrator 

finds that the proposed alternate 

procedures provide an equivalent or 

higher level of safety than the 

requirements in paragraphs (h)(1) 

through (h)(7) of this section, the 

Associate Administrator will approve 

the alternate procedures by notifying the 

track owner in writing. The Associate 

Administrator will specify in the 

written notification the date on which 

the procedures will become effective, 

and after that date, the track owner shall 

comply with the procedures. If the 

Associate Administrator determines that 

the alternate procedures do not provide 

an equivalent level of safety, the 

Associate Administrator will disapprove 

the alternate procedures in writing, and 

the track owner shall continue to 

comply with the requirements in 

paragraphs (h)(1) through (h)(7) of this 

section. 

(iii) While a determination is pending 

with the Associate Administrator on a 

request submitted pursuant to paragraph 

(h)(8) of this section, the track owner 

shall continue to comply with the 

requirements contained in paragraphs 

(h)(1) through (h)(7) of this section. 

(i) The track owner shall have in 

effect a comprehensive training program 

for the application of these written CWR 

procedures, with provisions for annual 

re-training, for those individuals 

designated under § 213.7(c) as qualified 

to supervise the installation, 

adjustment, and maintenance of CWR 

track and to perform inspections of 

CWR track. The track owner shall make 

the training program available for 

review by FRA upon request. 

(j) The track owner shall prescribe 

and comply with recordkeeping 

requirements necessary to provide an 

adequate history of track constructed 

with CWR. At a minimum, these records 

must include: 

(1) Rail temperature, location, and 

date of CWR installations. Each record 

shall be retained for at least one year; 

(2) A record of any CWR installation 

or maintenance work that does not 

conform to the written procedures. Such 

record shall include the location of the 

rail and be maintained until the CWR is 

brought into conformance with such 

procedures; and 

(3) Information on inspection of rail 

joints as specified in paragraph (h)(7) of 

this section. 

(k) The track owner shall make 

readily available, at every job site where 

personnel are assigned to install, inspect 

or maintain CWR, a copy of the track 

owner’s CWR procedures and all 

revisions, appendices, updates, and 

referenced materials related thereto 

prior to their effective date. Such CWR 

procedures shall be issued and 

maintained in one CWR standards and 

procedures manual. 

(l) As used in this section— 

Adjusting/de-stressing means the 

procedure by which a rail’s temperature 

is re-adjusted to the desired value. It 

typically consists of cutting the rail and 

removing rail anchoring devices, which 

provides for the necessary expansion 

and contraction, and then re-assembling 

the track. 

Annual re-training means training 

every calendar year. 

Buckling incident means the 

formation of a lateral misalignment 

sufficient in magnitude to constitute a 

deviation from the Class 1 requirements 

specified in § 213.55. These normally 

occur when rail temperatures are 

relatively high and are caused by high 

longitudinal compressive forces. 

Buckling-prone condition means a 

condition when the actual rail 

temperature is above the actual rail 

neutral temperature. This varies given 

the geographical composition of the 

track. 

Continuous welded rail (CWR) means 

rail that has been welded together into 

lengths exceeding 400 feet. Rail 

installed as CWR remains CWR, 

regardless of whether a joint or plug is 

installed into the rail at a later time. 

Corrective actions mean those actions 

which track owners specify in their 

CWR plans to address conditions of 

actual or potential joint failure, 

including, as applicable, repair, 

restrictions on operations, and 

additional on-foot inspections. 

CWR joint means any joint directly 

connected to CWR. 

Desired rail installation temperature 

range means the rail temperature range, 

within a specific geographical area, at 

which forces in CWR should not cause 

a buckling incident in extreme heat, or 

a pull apart during extreme cold 

weather. 

Disturbed track means the 

disturbance of the roadbed or ballast 

section, as a result of track maintenance 

or any other event, which reduces the 

lateral or longitudinal resistance of the 

track, or both. 

Mechanical stabilization means a type 

of procedure used to restore track 

resistance to disturbed track following 

certain maintenance operations. This 

procedure may incorporate dynamic 

track stabilizers or ballast consolidators, 

which are units of work equipment that 

are used as a substitute for the 

stabilization action provided by the 

passage of tonnage trains. 

Pull apart or stripped joint means a 

condition when no bolts are mounted 

through a joint on the rail end, rending 

the joint bar ineffective due to excessive 

expansive or contractive forces. 

Pull-apart prone condition means a 

condition when the actual rail 

temperature is below the rail neutral 

temperature at or near a joint where 

longitudinal tensile forces may affect 

the fastenings at the joint. 

Rail anchors mean those devices 

which are attached to the rail and bear 

against the side of the crosstie to control 

longitudinal rail movement. Certain 

types of rail fasteners also act as rail 

anchors and control longitudinal rail 

movement by exerting a downward 

clamping force on the upper surface of 

the rail base. 

Rail neutral temperature is the 

temperature at which the rail is neither 

in compression nor tension. 

Rail temperature means the 

temperature of the rail, measured with 

a rail thermometer. 

Remedial actions mean those actions 

which track owners are required to take 

as a result of requirements of this part 

to address a non-compliant condition. 

Tight/kinky rail means CWR which 

exhibits minute alinement irregularities 

which indicate that the rail is in a 

considerable amount of compression. 

Tourist, scenic, historic, or excursion 

operations mean railroad operations 

that carry passengers with the 

conveyance of the passengers to a 

particular destination not being the 

principal purpose. 

Track lateral resistance means the 

resistance provided by the rail/crosstie 

structure against lateral displacement. 

Track longitudinal resistance means 

the resistance provided by the rail 

anchors/rail fasteners and the ballast 

section to the rail/crosstie structure 

against longitudinal displacement. 

Train-induced forces means the 

vertical, longitudinal, and lateral 

dynamic forces which are generated 

during train movement and which can 

contribute to the buckling potential of 

the rail. 

Unscheduled detour operation means 

a short-term, unscheduled operation 

where a track owner has no more than 


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14 calendar days’ notice that the 

operation is going to occur. 

■ 5. Appendix B to part 213 is amended 

by adding an entry for § 213.118 and 

revising the entry for § 213.119 to read 

as follows: 

Appendix B to Part 213—Schedule of 

Civil Penalties 

Section Violation Willful 

violation 1

* * * * * * * 

213.118 ........ Continuous welded rail plan (a) through (e) ................................................................................. 5,000 7,500 

213.119 ........ Continuous welded rail plan contents (a) through (k) ................................................................... 5,000 7,500 

* * * * * * * 

1A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to 

$100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A. 

* * * * * Issued in Washington, DC on August 17, 

2009. 

Joseph C. Szabo, 

Administrator, Federal Railroad 

Administration. 

[FR Doc. E9–20253 Filed 8–24–09; 8:45 am] 

BILLING CODE 4910–06–P 


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