[Federal Register: August 17, 2009 (Volume 74, Number 157)]
[Proposed Rules]
[Page 41557-41579]
[DOCID:fr17au09-14]

-----------------------------------------------------------------------

Part IV

Department of Transportation

-----------------------------------------------------------------------

Federal Railroad Administration

-----------------------------------------------------------------------

49 CFR Parts 213 and 237

Bridge Safety Standards; Proposed Rule

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 213 and 237

[Docket No. FRA 2009-0014, Notice No. 1]
RIN 2130-AC04

Bridge Safety Standards

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

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: FRA is proposing to standardize and establish Federal
requirements for railroad bridges. This proposed rule would require
track owners to implement bridge management programs that include
annual inspections of railroad bridges. The proposed rule would also
require track owners to know the safe capacity load of bridges and to
conduct special inspections if the weather or other conditions warrant
such inspections. Finally, the proposed rule would also require the
audit of the bridge management programs and the inspections.

DATES: Written comments must be received by October 1, 2009. Comments
received after that date will be considered to the extent possible
without incurring additional delay or expense.
    FRA anticipates being able to complete this rulemaking without a
public, oral hearing. However if FRA receives a specific request for a
public, oral hearing prior to September 16, 2009, one will be scheduled
and FRA will publish a supplemental notice in the Federal Register to
inform interested parties of the date, time, and location of any such
hearing.

ADDRESSES: Comments: Comments related to Docket No. FRA-2009-0014 may
be submitted by any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.Regulations.gov. Follow the online instructions for submitting
comments.
     Mail: Docket Management Facility, U.S. Department of
Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington,
DC 20590-0001.
     Hand Delivery: Docket Management Facility, U.S. Department
of Transportation, West Building, Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. ET,
Monday through Friday, except Federal holidays.
     Fax:<PHONE_NUMBER>.
    Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Please note that all comments received will be posted
without change to http://www.Regulations.gov, including any personal
information provided. Please see the discussion under the Privacy Act
heading in the SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.Regulations.gov at any time or
visit the Docket Management Facility, U.S. Department of
Transportation, West Building, Ground floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC between 9 a.m. and 5 p.m. ET, Monday
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Gordon A. Davids, P.E., Bridge
Engineer, Office of Safety Assurance and Compliance, FRA, 1200 New
Jersey Avenue, SE., Washington, DC 20590 (telephone:<PHONE_NUMBER>);
or Sarah Grimmer Yurasko, Trial Attorney, Office of Chief Counsel, FRA,
1200 New Jersey Avenue, SE., Washington, DC 20950 (telephone: (202)
493-6390).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. The Safety of Railroad Bridges
    A. General
    B. Regulatory History
II. Railroad Safety Advisory Committee (RSAC) Overview
III. RSAC Railroad Bridge Working Group
IV. Section-by-Section Analysis
V. Regulatory Impact
    A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Environmental Impact
    E. Federalism Implications
    F. Unfunded Mandate Reform Act of 1995
    G. Energy Impact
    H. Privacy Act Statement

Background

I. The Safety of Railroad Bridges

A. General

    There are nearly 100,000 railroad bridges in the United States.
These bridges are owned by over 600 different entities. The bridges
vary in length, load capacity, design, and construction material.
Everything that is shipped or transported via rail likely travels
across one or more railroad bridge. Thus, everything from intermodal
goods, automobiles, grain, coal, hazardous materials, and passengers is
transported on the nation's rail system and therefore across railroad
bridges.
    The structural integrity of bridges that carry railroad tracks is
important to the safety of railroad employees and to the public. The
responsibility for the safety of railroad bridges rests with the owner
of the track carried by the bridge, together with any other party to
whom that responsibility has been assigned by the track owner. The
severity of a train accident is usually compounded when a bridge is
involved, regardless of the cause of the accident.
    Beginning in 1991, FRA conducted a review of the safety of railroad
bridges. The review was prompted by the agency's perception that the
bridge population was aging, traffic density and loads were increasing
on many routes, and the consequences of a bridge failure could be
catastrophic. During the past five decades, not one fatality has been
caused by the structural failure of a railroad bridge. Train accidents
caused by the structural failure of railroad bridges have been
extremely rare.
    Although the average construction date of railroad bridges predates
most highway bridges by several decades, the older railroad bridges
were designed to carry heavy steam locomotives. Design factors were
generally conservative, and the bridges' functional designs permit
repairs and reinforcements when necessary to maintain their viability.
Railroad bridges are most often privately, rather than publicly, owned.
Their owners seem to recognize the economic consequences of neglecting
important maintenance. Private ownership enables the railroads to
control the loads that operate over their bridges. Cars and locomotives
exceeding the nominal capacity of a bridge are not operated without
permission from the responsible bridge engineers, and then only under
restrictions and conditions that protect the integrity of the bridge.
    Many railroad bridges display superficial signs of deterioration
but still retain the capacity to safely carry their loads. Corrosion on
a bridge is not a safety issue unless a critical area sees significant
loss of material. Routine inspections are prescribed to detect this
condition, but determination of its effect requires a detailed
inspection and analysis of the bridge. In general, timber bridges
continue to function safely, and masonry structures built as early as
the 1830's remain functional and safe for their traffic. Of the few
train accidents that involved bridges, most have not been caused by
structural failure. FRA accident records for the 27 years 1982 through
2008 show 58 train accidents

that were caused by the structural failure of railroad bridges. These
accidents resulted in nine reportable injuries and a reported
$26,555,878 damage to railroad facilities, cars and locomotives.

B. Regulatory History

    On April 27, 1995, FRA issued an interim statement of policy on the
safety of railroad bridges. Published in the Federal Register at 60 FR
20654, the interim statement included a request for comments to be
submitted to FRA during a 60-day period following publication. On
August 30, 2000, FRA published a final statement of agency policy for
the safety of railroad bridges (``policy statement''). See 65 FR 52667.
The policy statement can be found at 49 CFR part 213 appendix C. With
the policy, FRA established criteria for railroads to use to ensure the
structural integrity of bridges that carry railroad tracks, which
reflected minor changes following public comment on the interim
statement. Unlike regulations under which FRA ordinarily issues
violations and assesses civil penalties, the policy statement contains
guidelines for the proper maintenance of bridge structures and is
advisory in nature.
    On October 16, 2008, President Bush signed into law the Railroad
Safety Improvement Act of 2008, Public Law 110-423, Division A
(``RSIA''). Section 417 of the RSIA directs FRA to issue, by October
16, 2009, regulations requiring railroad track owners to adopt and
follow specific procedures to protect the safety of their bridges. This
NPRM is the first step to the agency's promulgation of bridge safety
regulations per the mandate of the RSIA. In the Section-by-Section
Analysis, below, FRA will discuss how the proposed regulatory text
addresses each portion of the RSIA.
    Prior to the passage of the RSIA, FRA had already begun work on
revising the policy statement. On January 13, 2009, FRA published an
amendment to the policy statement by incorporating changes proposed by
the Rail Safety Advisory Committee (``RSAC'') on September 10, 2008.
RSAC developed a list of Essential Elements of Railroad Bridge
Management Programs (``Essential Elements'') which make up the bulk of
the amendment. The Essential Elements provide railroad track owners
with a uniform, comprehensive set of components for recommended
inclusion in their bridge management programs. With this information, a
track owner may develop a single, comprehensive set of instructions,
information and data as guidance for his employees who are responsible
for the management, inspection, maintenance, and safety of railroad
bridges. RSAC also recognized that, although most railroads were
already performing these functions to varying degrees, it would be
useful to have the recommended Essential Elements available in a
central location so that all concerned may see the railroad's full
program, and also to determine that no essential element is overlooked.
    All aspects of the policy statement that are not incorporated into
the regulatory text of part 237 are now found in its appendix A.

II. The Rail 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 industry's major stakeholders, 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. Railroad Bridge Working Group

    RSAC agreed with FRA on February 20, 2008, to accept the task of
reviewing FRA's railroad bridge safety policies and

activities, and to make appropriate recommendations for FRA to improve
the bridge safety program. RSAC accordingly established a Railroad
Bridge Working Group (RBWG), composed of representatives of the various
organizations on the RSAC and including persons with particular
expertise in railroad bridge safety and management. The RBWG met on
April 24-25, 2008, June 12, 2008, and August 7, 2008. On September 10,
2008, the full RSAC voted on the RBWG's report, and recommended that
FRA implement the RBWG's proposal of a set of ``Essential Elements of
Railroad Bridge Management Programs,'' (Essential Elements) in FRA's
Agency Policy on the Safety of Railroad Bridges.
    The RBWG met again on January 28-29, 2009, and February 23-24,
2009, to recommend rule text to address the RSIA's mandate to FRA in
Section 417 to promulgate bridge safety regulations. The RBWG reached
consensus on proposed regulatory text which makes up the basis of this
NPRM. However, there were four items that the RBWG was not able to
agree upon. The RBWG could not reach consensus with regard to
Sec. Sec.  237.111(d), 237.111(e), 237.157(a) and 237.157(b). FRA
requests that the public comment specifically on these items.

IV. Section-by-Section Analysis

Appendix C to Part 213

    FRA proposes to remove appendix C to part 213, which is FRA's
Statement of Agency Policy on the Safety of Railroad Bridges (``policy
statement''). As many portions of the text in the policy statement will
be covered in part 237, it would be redundant and confusing to leave
them in the policy statement as currently published in part 213. With
regard to the portions of the policy statement that are advisory in
nature, FRA is proposing to publish them in a new appendix to part 237,
which will be discussed further below.

Section 237.1 Scope

    In this section, FRA proposes the purpose for the minimum standards
required under this part for management of railroad bridges. Railroads
can adopt more stringent standards as long as they are in accordance
with this part.

Section 237.5 Application

    FRA proposes that this rule will apply to all owners of track on
bridges which carry railroad track with certain exceptions as outlined
or explained in following subsections. As delineated in FRA's Statement
of Agency Policy Concerning Enforcement of the Federal Railroad Safety
Laws at appendix A of 49 CFR part 209, FRA exercises jurisdiction over
tourist, scenic, and excursion railroad operations whether or not they
are conducted on the general railroad system. FRA proposes that this
part apply to tourist railroads because the passengers on those
railroads are entitled to the protection afforded by this rule.
    Paragraph (b). FRA proposes that this part not apply to bridges on
track used exclusively for rapid transit operations in urban areas that
are not connected with the general system of transportation. This is in
accordance with appendix A of 49 CFR 209.

Section 237.7 Responsibility for Compliance

    FRA proposes that the responsibility for the safety of trains on
any track lies with the owner of that track. Therefore, the track owner
is responsible for complying with the bridge safety standards
promulgated in this part. If a bridge carries tracks owned by two or
more owners, then the track owner can choose to make an assignment of
responsibility for compliance with this part. FRA proposes that the
assignment process, delineated in paragraphs (b) through (d) of this
section, be similar to the assignment process detailed in 49 CFR 213.5.
However, FRA proposes to be able to hold the track owner or the
assignee or both responsible for compliance with this part and subject
to penalties under section 237.11. FRA intends that the responsibility
for compliance with this part will follow, as closely as practicable,
the responsibility for compliance with the Federal Track Safety
Standards, and that where such responsibility is already assigned, it
would not be necessary for the track owner to file an additional
assignment of responsibility. As in part 213, FRA intends that
``person'' means an entity of any type covered under 1 U.S.C. 1,
including but not limited to the following: a railroad; a manager,
supervisor, official, or other employee or agent of a railroad; any
owner, manufacturer, lessor, or lessee of railroad equipment, track or
facilities; any independent contractor providing goods or services to a
railroad; any employee of such owner, manufacturer, lessor, lessee, or
independent contractor; and anyone held by the FRA to be responsible
for compliance with this part.
    During meetings with the RBWG, FRA staff initially proposed holding
the ``bridge owner'' as the party responsible for compliance with part
237, and had defined the ``bridge owner'' as the ``owner of track to
which this part applies.'' After reviewing RSAC's recommendation, FRA
determined that this definition could cause confusion, as the bridge
owner might not be the party who owned the track supported by the
bridge. FRA has proposed instead to hold the ``track owner''
responsible for compliance with this part.
    Paragraph (d). FRA proposes that a common carrier by railroad which
is directed by the Surface Transportation Board to provide service over
the track of another railroad under 49 U.S.C. 11123 is considered the
owner of that track for the purposes of the application of this part
during the period the directed service order remains in effect. On rare
occasions, such as a cessation of service by a railroad, the Surface
Transportation Board has directed a railroad other than the track owner
to provide service. In such cases, the designated operator shall be
considered the owner for purposes of compliance with the bridge safety
regulations.

Section 237.9 Definitions

    FRA proposes that the definitions in this section are only intended
to apply to this part, and not to alter the same terminology wherever
used outside this part for other purposes.
    Bridge modification and repair. FRA proposes that bridge
modification means a change to the configuration of a railroad bridge
that affects the load capacity of the bridge. FRA proposes that bridge
repair means remediation of damage or deterioration which has affected
the structural integrity of a railroad bridge. FRA proposes that this
part requires that modifications and repairs to bridges be designed by
railroad bridge engineers, and the work supervised by designated bridge
supervisors. This definition clarifies that minor modifications and
repairs, such as replacing a wire rope handrail with one made of pipe,
or painting a bridge, do not need to be designed and supervised
pursuant to this part. However, this does not exempt the track owner
from properly supervising the personal safety of the individuals
performing the work because that issue is addressed in other rules.
    Railroad bridge. FRA proposes to define a ``railroad bridge'' as
all structures over openings under the track except small culverts,
pipes, or such other structures that are located so far below the track
that they only carry dead load from soil pressure, and are not
subjected to bending, tension or compression stresses from passing
trains. FRA does not intend to relieve a railroad from taking any
action necessary to protect the safety of trains in the case of any
structure, including

small culverts, by providing for their inspection and maintenance, but
it exempts them from the specific requirements of this regulation.

Section 237.11 Penalties

    FRA proposes that this provision conform to provisions of the
enabling legislation and stated agency policy. Consistent with FRA's
Statement of Agency Policy Concerning Enforcement of the Federal
Railroad Safety Laws, a 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.

Section 237.13 Waivers

    FRA proposes that each petition for a waiver under this section
shall be filed in the manner and contain the information required by 49
CFR part 211, which prescribes rules of practice that apply to waiver
proceedings. The processing of petitions for waiver of safety rules is
found at subpart C to part 211.

Section 237.31 Scope

    It should be noted here that FRA is proposing minimum requirements
to assure the structural integrity of railroad bridges and to protect
the safe operation of trains over those bridges. The responsibility for
the safety of a railroad bridge rests with the owner of the track
supported by that bridge and the engineer who makes the critical
decisions regarding the management and use of that bridge.

Section 237.33 Adoption of Bridge Management Programs

    Congress mandated that FRA ``promulgate a regulation requiring
owners of track carried on one or more railroad bridges to adopt a
bridge safety management program to prevent the deterioration of
railroad bridges and reduce the risk of human casualties, environmental
damage, and disruption to the Nation's railroad transportation system
that would result from a catastrophic bridge failure.'' Public Law 110-
432, Division A, Section 417(a). FRA proposes to require track owners
to adopt a bridge safety management program that prevents the
deterioration of railroad bridges by preserving their capability to
safely carry the traffic to be operated over them. FRA is proposing
that Class I carriers and owners of track segments which are part of
the general railroad system of transportation and which carry more than
ten scheduled passenger trains per week implement their bridge safety
programs by six months after the final rule's effective date. FRA
proposes that Class II carriers which carry less than 10 scheduled
passenger trains per week implement their bridge safety programs by
twelve months after the final rule's effective date. Finally, FRA
proposes that all other track owners subject to this part implement
their bridge safety programs by 24 months after the final rule's
effective date.
    FRA has proposed an implementation schedule which is considered
realistic, with priorities given to railroads with the highest levels
of freight or passenger traffic. The implementation dates apply to the
bridge owning entity, not to specific track segments. However, it is
reasonable to consider that the specific provisions of each program
will be implemented in a manner that accords higher priority to
individual track segments with high volumes of freight or passenger
traffic.

Section 237.35 Content of Bridge Management Programs

    Certain elements of a bridge management program are essential to
its effectiveness. Those elements are enumerated in this section. Track
owners and individuals responsible for the safety of railroad bridges
are encouraged to adapt these elements to the needs of their areas of
responsibility, and to adopt additional elements not inconsistent with
the requirements of this part.
    Paragraph (a). Congress mandated that the new regulations require
each track owner to ``develop and maintain an accurate inventory of its
railroad bridges, which shall identify the location of each bridge, its
configuration, type of construction, number of spans, span lengths, and
all other information necessary to provide for the safe management of
the bridges.'' Public Law 110-432, Division A, Section 417(b)(1). FRA
proposes that such an inventory be maintained. An accurate inventory of
any property to be managed is essential so that the responsible
individuals may schedule and track inspection, maintenance and repair
of the property units.
    Paragraph (b). Congress mandated that the new regulations require
that the track owner ``maintain, and update as appropriate, a record of
the safe capacity of each bridge which carries its track and, if
available, maintain the original design documents of each bridge and a
documentation of all repairs, modifications, and inspections of the
bridge.'' Public Law 110-432, Division A, Section 417(b)(3). FRA
proposes that a record of the safe load capacity of each bridge be
established. The operation of excessively heavy loads over a bridge
will seriously shorten its useful life and will reduce or even
eliminate the margin of safety between structural integrity and
catastrophic failure. It is essential that the track owner should know
that the loads permitted to be operated on a bridge are within the safe
limits of the bridge.
    Paragraph (c). FRA proposes that the track owner obtain and
maintain the design documents of each bridge, if available, and to
document all repairs, modifications, and inspections of each bridge.
The determination of safe load capacity requires knowledge of the
configuration of the bridge and the materials of which it is
constructed. Although the configuration may be determined by actual
measurements of all of the components, that procedure can be tedious
and expensive. Good documentation of the design and history of a bridge
will enable rapid and accurate determination of bridge capacity when
such calculations are needed, as well as determination of the
maintenance and service history of a bridge to detect and correct
possible deterioration of its components.
    Paragraph (d). Bridge inspection is absolutely essential to an
effective bridge management program. In this paragraph, FRA proposes
that the track owner's bridge management program contain a bridge
inspection program. Items (1) through (6) should be addressed in the
program to the degree that promotes effective and efficient conduct of
the inspection program. With regard to item (1), bridge inspection can
present certain risks that are inherent in working at heights and
around moving vehicles. A bridge inspection program should at least
address the unique hazards associated with the process. With regard to
item (2), a bridge inspection program should incorporate standards for
the procedures and required details of any different types of
inspection that are referenced in the program, such as annual
inspections, post-event inspections, rating inspections and
intermediate periodic inspections. A large railroad might find it
convenient to describe the standard procedures for various types of
inspections in some detail, while a small railroad that normally
conducts only annual inspections might describe only that procedure as
well as post-event special inspections, and then issue instructions of
particular applicability for other types of inspections that occur only
infrequently. With regard to items (3) through (6), use of a standard
method of describing the condition of components

promotes effective and efficient communication between the inspector
and the persons who review and evaluate a bridge using information from
the inspection.

Section 237.51 Scope

    In subpart C, FRA proposes minimum standards for incorporation in
railroad bridge management programs for qualification and designations
of persons who perform safety critical functions that affect the
integrity and safety of railroad bridges. Many aspects of railroad
bridge work differ from other fields of engineering, inspection and
maintenance. It is essential that the individuals who are responsible
for these safety-critical functions be qualified by education, training
and experience to perform them correctly.

Section 237.53 Railroad Bridge Engineers

    In this section, FRA proposes the minimum standards that a railroad
bridge engineer must meet. Congress directed FRA to ``ensure that an
engineer who is competent in the field of railroad bridge engineering''
is responsible for the development of all inspection procedures,
reviews all inspection reports, and determines whether bridges are
being inspected according to the applicable procedures and frequency,
and reviews any items noted by an inspector as exceptions. Section
417(b)(7) of the RSIA. Railroad bridge engineering is based on the same
principles of engineering as all other structural engineering work, but
the application of many of those principles is unique to this
particular field. The live loads carried on railroad bridges are
generally much higher than the loads on highway bridges or other
transportation structures. Overall configuration and details of
construction of railroad bridges differ greatly from other classes of
structures, to the extent that dealing with these features requires
some experience with them as well as an understanding of the
fundamentals of engineering.
    FRA understands that not all railroad bridge engineers will be
faced with all aspects of railroad bridge engineering. For example, an
engineer engaged to prescribe safe loads for short steel spans and
timber trestles on a particular railroad might never have to perform a
detailed analysis of a large truss bridge. The basic premise is that
the engineer be competent to perform the functions that are encompassed
by that individual's employment or engagement. The determination of
qualifications by the track owner includes either employment or
engagement of the engineer by the track owner, and designation of the
engineer to exercise the authority called for in this part.
    Paragraph (b) of this section was added by FRA to the text
recommended by the RSAC. FRA proposes that a railroad bridge engineer
must also have either: (1) A bachelor's degree in engineering granted
by a school of engineering with at least one program accredited or
recognized by the Accreditation Board for Engineering and Technology
(ABET) as a professional engineering curriculum; or (2) current
registration as a professional engineer practicing within his or her
licensed scope of practice. FRA believes that the critical nature of
railroad bridge engineering work called for in this proposed rule
requires persons who meet a minimal educational or experience standard
which is common to the engineering profession and which is necessary
for an individual who will perform the functions of an engineer as
called for in this proposed rule. FRA developed this paragraph from the
U.S. Office of Personnel Management's Basic Requirements for Federal
Service's classification of an engineer.
    In paragraph (c), FRA proposes that nothing in this part is meant
to affect the States' authority to regulate the licensure of
professional engineers. This section represents a minimum standard to
be attained by engineers who perform the functions called for in this
regulation. Recognition by FRA as a railroad bridge engineer would not
enable a person to provide professional engineering services in
violation of a State law or regulation. FRA does not intend to pre-empt
or interfere with any State laws regarding the professional practice of
engineering.
    As the RBWG did not discuss the language in paragraphs (b) and (c)
of this section, FRA welcomes public comment on the proposed regulatory
text.

Section 237.55 Railroad Bridge Inspectors

    In this section, FRA proposes the minimum standards that a railroad
bridge inspector must meet. Effective inspection of bridges is
essential to preserving their integrity and serviceability. Inspectors
must be able to understand and carry out the inspection procedure,
including accessing inspection points on a bridge, measuring components
and any changes, describing conditions found in a standard, unambiguous
manner, and detecting the development of conditions that are critical
to the safety of the bridge. It is essential that an inspector who
detects a potential hazard to the safe operation of trains should be
authorized by the track owner to place appropriate restrictions on the
operation of railroad traffic pending review as necessary by a railroad
bridge engineer. An individual who is not competent in railroad bridge
work should not be permitted to overrule a determination made by a
designated bridge inspector, supervisor or engineer.

Section 237.57 Railroad Bridge Supervisors

    In this section, FRA proposes minimum standards that a railroad
bridge supervisor must meet. Individuals who supervise and take
responsibility for construction, repair and modification of railroad
bridges must be competent to ensure that the work is performed in
accordance with valid standards and any specific specifications, plans
and instructions applicable to the work to be performed. This provision
applies to any such individual, regardless of job title, who directly
oversees such work and approves or restricts the movement of railroad
traffic during the progress of the work.

Section 237.59 Designations of Individuals

    In the RSIA, Congress mandated that the bridge regulations
designate qualified bridge inspectors or maintenance personnel to
authorize the operation of trains on bridges following repairs, damage,
or indications of potential structural problems. Public Law 110-432,
Division A, Section 417(b)(8). In this section, FRA proposes that each
track owner designate certain individuals as qualified railroad bridge
engineers, inspectors, and supervisors, and provide a recorded basis
for each designation in effect. The track owner must record
designations of individuals, whether employees, consultants or
contractors. If a consultant or contractor has several individuals
performing the described functions under a contract or other
engagement, then one or more individuals should be designated as being
responsible to the track owner for the work performed under that
engagement, with the others working under the responsible charge of
that individual.

237.71 Scope

    In subpart D, FRA proposes to prescribe minimum standards to be
incorporated in railroad bridge management programs to prevent the
operation of equipment that could damage a bridge by exceeding safe
stress levels in bridge components or by

extending beyond the horizontal or vertical clearance limits of the
bridge. Protection of bridges and bridge components from overstress is
essential to the continued integrity and serviceability of the bridge.
It is also essential that equipment or loads that exceed the clearance
limits of a bridge not be operated owing to the potential for severe
damage to the bridge.

Section 237.73 Determination of Bridge Load Capacities

    Paragraph (a). In this paragraph, FRA proposes that each track
owner determine the load capacity of each of its railroad bridges. It
is essential that the track owner know that loads operated over a
bridge not exceed the safe capacity of that bridge. However, once it is
determined that a bridge has adequate capacity to carry the loads being
operated, FRA proposes not to require that any additional effort be
expended to precisely calculate the additional capacity of that bridge
although that might well be useful from a planning or economic
standpoint.
    Paragraph (b). In this paragraph, FRA proposes that the load
capacity of each bridge be documented in the track owner's bridge
management programs, together with the method by which the capacity was
determined. Once the load capacity is determined, the value must be
recorded in order for it to be useful. Examples of methods of
determination could be the original design documents, recalculation, or
rating inspection.
    Paragraph (c). In the RSIA, Congress mandated that a professional
engineer competent in the field of railroad bridge engineering, or a
qualified person under the supervision of the track owner, determine
bridge capacity. Public Law 110-432, Division A, Section 417(b)(2).
Load capacity determination in most instances requires the education,
experience and training of an engineer who is familiar with railroad
bridges and the standard practices that are unique to that class of
structure.
    The present standard references for railroad bridge design and
analysis are found in the ``Manual for Railway Engineering'' of the
American Railway Engineering and Maintenance of Way Association
(AREMA). The chapters in this Manual dealing with Timber, Concrete and
Steel structures, and Seismic Design, are under continuous review by
committees consisting of leading engineers in the railroad bridge
profession, including representatives of FRA. Although bridges exist
that were designed using different or earlier references, they can
still be evaluated by use of the AREMA Manual.
    Paragraph (d). In this paragraph, FRA proposes that bridge load
capacity shall be determined from existing design and modification
records of a bridge, provided that the bridge substantially conforms to
its records configuration. Determination of bridge load capacity
requires information on the configuration of the bridge and the
dimensions and material of its component parts. If the bridge is found
to conform to the drawings of its original design and modifications,
those drawings may serve as the basis for any rating calculation that
might be performed, thus simplifying the process. Lacking that prior
information, it is necessary that the configuration, dimensions and
properties of the bridge and its components be determined by on-site
measurement of the bridge as it currently exists.
    Paragraph (e). In this paragraph, FRA proposes that a track owner
shall schedule the evaluation of bridges for which the load capacity
has not already been determined. This section provides for a phase-in
period for determination of bridge capacities. There is probably not
sufficient engineering expertise available in the United States for
immediate rating of all unrated railroad bridges. This will provide a
reasonable time period for track owners to accomplish this work. It is
intended that the unrated bridges be given relative priority for
rating, based on the judgment of a railroad bridge engineer. This
prioritization can be accomplished either by observation or by
evaluation of certain critical members of a bridge, as determined by
the engineer using professional judgment.
    Paragraph (f). FRA proposes that a new capacity must be determined
by a railroad bridge engineer when a bridge inspection record reveals
that the condition of a bridge or a bridge component might affect the
load capacity of the bridge. Accurate determination of current bridge
capacity depends on accurate information about the current
configuration and condition of the bridge. The engineer might determine
that a change in condition or configuration calls for a revised rating
calculation.
    Paragraph (g). In this paragraph, FRA proposes that bridge load
capacity may be expressed in terms of numerical values related to a
standard system of bridge loads, but shall in any case be stated in
terms of weight and length of individual or combined cars and
locomotives, for the use of transportation personnel. Engineers use
standard definitions of loading combinations for design and rating of
bridges. Common among these standard definitions is a series of
proportional loads known as the Cooper System. The capacity of a bridge
and its components can be described in terms of a Cooper Rating, and
the effect of a load on a bridge can also be related to a Cooper System
value.
    Proper application of this system requires a full understanding of
its use and limitations. However, the results of its application can be
translated into terms of equipment weights and configurations that can
be effectively applied by persons who manage regular transportation
operations of the railroad. This enables them to determine if a given
locomotive, car or combination can be operated on a bridge with no
further consideration, or if the equipment must be evaluated as an
exceptional movement.
    Paragraph (h). FRA proposes that bridge load capacity may be
expressed in terms of both normal and maximum load conditions. Normal
bridge ratings generally define the loads that can be operated on a
bridge for an indefinite period without damaging the bridge. In some
cases, mostly involving steel or iron bridges, a higher rating, up to a
maximum rating, can be given to the bridge to permit the operation of
heavier loads on an infrequent basis. These heavier loads should not,
in themselves, damage the bridge, but the cumulative effect of the
higher resulting stresses in bridge members could cause their eventual
deterioration.
    In this paragraph, FRA also proposes that operation of equipment
that produces forces greater than the normal capacity shall be subject
to any restrictions or conditions that may be prescribed by a railroad
bridge engineer. An engineer can often prescribe compensating
conditions that will permit the movement of equipment that is heavier
than normal. Examples include speed restrictions to reduce the impact
factor of the rolling load, the insertion of lighter-weight spacer cars
between the heavier cars in a train, or the installation of temporary
bents or other supports under specific points on the bridge.

Section 237.75 Protection of Bridges from Over-Weight and Over-
Dimension Loads

    Bridges can be seriously damaged by the operation of loads that
exceed their capacity. Movement of equipment that exceeds the clear
space on a bridge is an obvious safety hazard. In this section, FRA
addresses Congress' mandate in the RSIA that the track owner ``develop,
maintain, and enforce a written procedure that will ensure that its
bridges are not loaded beyond their

capacities.'' Public Law 110-432, Division A, Section 417(b)(4).
    Paragraph (a). In this paragraph, FRA proposes that each track
owner shall issue instructions to its personnel who are responsible for
the consist and operation of trains over its bridges to prevent the
operation of cars, locomotives and other equipment that would exceed
the capacity or dimensions of its bridges. Transportation personnel of
a railroad are ultimately responsible for the movement of trains, cars
and locomotives. It is essential that they should know and follow any
restrictions that are placed on those movements.
    Paragraph (b). In this paragraph, FRA proposes that the
instructions regarding weight shall be expressed in terms of maximum
equipment weights, and either minimum equipment lengths or axle
spacing. Transportation personnel have information on the weights and
configuration of cars and locomotives, and they must be able to relate
that information to any restrictions placed on the movement of that
equipment.
    Paragraph (c). In this paragraph, FRA proposes that the
instructions regarding dimensions shall be expressed in terms of feet
and inches of cross section and equipment length, in conformance with
common railroad industry practice for reporting dimensions of
exceptional equipment in interchange in which height above top-of-rail
is shown for each cross section measurement, followed by the width of
the car or the shipment at that height. In the industry, a standard
format exists for the exchange of information on dimensions of railroad
equipment. This standard practice is practical, even if it is not
intuitive. Use of the industry practice is necessary to avoid error and
confusion.
    Paragraph (d). In this paragraph, FRA proposes that the
instructions may apply to individual structures or to a defined line
segment or groups of line segments where the published capacities and
dimensions are within the limits of all structures on the subject line
segments. Railroads commonly issue instructions related to equipment
weights and dimensions to be effective on line segments of various
lengths. It is not necessary that transportation personnel be advised
of the capacity of every bridge as long as each bridge in the line
segment has the capacity to safely carry the loads permitted on that
line.

Section 237.101 Scope

    In subpart E, FRA proposes minimum standards to be incorporated
into railroad bridge management programs to provide for an effective
program of bridge inspections. Bridge inspection is a vital component
in any bridge management program. A bridge with undetected or
unreported damage or deterioration can present a serious hazard to the
safe operation of trains. Bridge inspection and evaluation is a multi-
tiered process, unlike many other types of inspection on a railroad.
Where track, equipment and signal inspectors usually can compare
measurements against common standards to determine whether the
inspected feature complies with the standards, such is not the case
with most bridges. The evaluation of a bridge requires the application
of engineering principles by a competent person, who is usually not
present during the inspection. It is therefore necessary that an
inspection report should show any conditions on the bridge that might
lead to a reduction in capacity, initiation of repair work, or a more
detailed inspection to further characterize the condition.

Section 237.103 Scheduling of Bridge Inspections

    Paragraph (a). In this paragraph, FRA proposes regulations to
address Congress' mandate that the track owner ``conduct regular
comprehensive inspections of each bridge, at least once every year, and
maintain records of those inspections that include the date on which
the inspection was performed, the precise identification of the bridge
inspected, the items inspected, and accurate description of the
condition of those items, and a narrative of any inspection item that
is found by the inspector to be a potential problem.'' Public Law 110-
432, Division A, Section 417(b)(5). Annual inspection of bridges has
been an industry practice for over a century, and has proven to be an
effective tool of bridge management. Even where a bridge sees very low
levels of railroad traffic, the potential still exists for damage from
external sources or natural deterioration. This paragraph calls for one
inspection per calendar year, with not more than 540 days between
successive inspections. Both criteria apply. For example, if a bridge
is inspected on January 2, 2009, it becomes overdue for inspection on
June 27, 2010, 541 days later. If it is inspected on December 18, 2011,
it becomes overdue on January 1, 2013, since it was not inspected in
calendar year 2012.
    Paragraph (b). In this paragraph, FRA proposes that a bridge shall
be inspected more frequently than the period referenced in paragraph
(a), above, when a railroad bridge engineer determines that such
inspection frequency is necessary. The responsibility for adequate
inspection remains with the track owner, with the conditions prescribed
by a railroad bridge engineer. The inspection regimen for every bridge
should be determined from its condition, configuration, environment and
traffic levels.
    Paragraph (c). FRA proposes that each bridge management program
define requirements for the special inspection of a bridge to be
performed whenever the bridge is involved in an event which might have
compromised the integrity of the bridge, including flood, fire,
earthquake, derailment, or other vehicular or vessel impact. It is
essential that railroad traffic be protected from possible bridge
failure caused by damage from an event caused by natural or non-
railroad agents. The track owner should have in place a means to
receive notice of such an event, including weather and earthquakes, and
a procedure to conduct an inspection following such an event.
    Paragraph (d). In this paragraph, FRA proposes that any railroad
bridge that has not been in railroad service and has not been inspected
in accordance with this section within the previous 540 days be
inspected and the inspection report reviewed by a railroad bridge
engineer prior to the resumption of railroad service. The inspection
frequency requirements of this section do not apply to bridges that are
not in railroad service, but that does not relieve a track owner from
responsibility for any damage to outside parties that might be caused
by the condition of the bridge. If a bridge not in service has been
inspected within the 540 day period, the track owner may accept that
inspection and begin railroad service, subject to any determination in
that regard by a railroad bridge engineer. The inspection period would
date from the last inspection, with no credit for out-of-service time.

Section 237.105 Bridge Inspection Procedures

    In this section, FRA proposes that each bridge management program
specify the procedure to be used for inspection of individual bridges
or classes and types of bridges. As mandated by the RSIA, FRA proposes
that the bridge inspection procedures must be as specified by a
railroad bridge engineer who is designated as responsible for the
conduct and review of the inspections. Public Law 110-432, Division A,
Section 417(b)(7)(A). In the RSIA, Congress also mandated that the
bridge safety regulations must ``ensure that the level of detail and
the inspection procedures are appropriate to the configuration of the
bridge,

conditions found during the previous inspections, and the nature of the
railroad traffic moved over the bridge, including car weights, train
frequency and lengths, levels of passenger and hazardous materials
traffic, and vulnerability of the bridge to damage.'' Accordingly, FRA
proposes that the bridge inspection procedures must ensure that the
level of detail and the inspection procedures are appropriate to the
configuration of the bridge. Additionally, the bridge inspection
procedures must be designed to detect, report and protect deterioration
and deficiencies before they present a hazard to safe train operation.
The responsibility for adequate inspection remains with the track
owner, with the conditions prescribed by a railroad bridge engineer.
The inspection regimen for every bridge should be determined from its
condition, configuration, environment and traffic levels. The
instructions for bridge inspection may be both general, as by bridge
type or line segment; and specific as needed by particular
considerations for an individual bridge.

Section 237.107 Special Inspections

    Paragraph (a). In this paragraph, FRA proposes that each bridge
management program prescribe a procedure for protection of train
operations and for inspection of any bridge that might have been
damaged by a natural or accidental event, including flood, fire,
earthquake, derailment or vehicular or vessel impact. It is essential
that railroad traffic be protected from possible bridge failure caused
by damage from an event caused by natural or non-railroad agents. The
track owner should have in place a means to receive notice of such an
event, including weather and earthquakes, and a procedure to conduct an
inspection following such an event.
    Paragraph (b). In this paragraph, FRA proposes that each bridge
management program provide for the detection of scour or deterioration
of bridge components that are submerged or subject to water flow. The
condition of bridge components located under water is usually not
evident from above. Means to determine their condition might be as
simple as using measuring rods from the surface, or might call for
periodic or special diving inspection. Advanced technology might also
provide devices that can be used to determine underwater conditions.

Section 237.109 Conduct of Bridge Inspections

    In this section, FRA proposes that bridge inspections be conducted
under the direct supervision of a designated bridge inspector, who
shall be responsible for the accuracy of the results and the conformity
of the inspection to the bridge management program. Bridge inspections
can often require more than one person for safety and efficiency. This
provision permits others to assist the designated inspector, who
remains responsible for the results of the inspection.

Section 237.111 Bridge Inspection Records

    In this section, FRA proposes that each track owner to which this
part applies keep a record of each inspection required to be performed
on those bridges under this part. A bridge inspection has little value
unless it is recorded and reported to the individuals who are
responsible for the ultimate determination of the safety of the bridge.
Bridge inspectors may use a variety of methods to record their findings
as they move about the bridge. These include notebooks, voice
recordings, having another individual transcribe notes, and
photographs. These notes and other items are usually compiled into a
prescribed report form at the end of the day or at the conclusion of
the inspection. In paragraph (c), FRA delineates the essential elements
that must be addressed and reported in any bridge inspection.
    Paragraph (d). In this paragraph, FRA proposes that an initial
report of each bridge inspection be placed in the location designated
by the bridge management program within 14 calendar days of the
completion of the field portion of the inspection. The initial report
must include the information delineated in paragraph (c)(1) through
(c)(5). The RBWG did not reach consensus on this item. FRA drafted this
provision with the intent that the actual conduct of the inspection
should be reported and recorded, showing the fact that the bridge was
actually inspected on a certain date, the type of inspection performed,
by whom it was performed, and whether or not any critical conditions
were detected. Inspection and reporting procedures vary widely among
different railroads and circumstances. In many cases, especially on
larger railroads, an inspector would prepare the report before leaving
the bridge. The reports might be forwarded by mail, by electronic
means, or by hand delivery. They might be forwarded daily, weekly, or
even less frequently. In other circumstances, a consulting engineer
might be engaged by a small railroad to inspect all of the bridges on
all or part of the line, and the final report might be prepared by the
engineering firm after all of the inspections are completed. Similarly,
a large railroad might begin a comprehensive inspection and evaluation
of a large structure that will take several months to complete.
    FRA recognizes the wide range of time periods required for these
various inspections and reporting procedures, so this provision was
recommended as a means for the track owner to track inspection
progress, bridge by bridge, with a simple line item showing:
    (1) The identification of the bridge inspected.
    (2) The date of completion of the inspection.
    (3) The identification of the inspector.
    (4) The type of inspection performed.
    (5) An indication on the report as to whether any item noted
thereon requires expedited or critical review by a railroad bridge
engineer, and any restrictions placed at the time of the inspection.
    These five items can usually be listed on a single line of a
report, which might include all of the bridges inspected by one
individual in a week or two. The report could be transmitted to the
track owner by U.S. Mail or electronically. FRA does not anticipate
that the initial or summary report include all of the data called for
in the bridge management program, together with any narrative
descriptions necessary for the correct interpretation of the report.
This information would be included in the complete inspection report.
As consensus was not reached by the RBWG, FRA particularly requests
comments on this issue.
    Paragraph (e). The RBWG did not reach consensus on paragraph (e).
In this paragraph, FRA proposes that a complete report of each bridge
inspection shall be placed in the location designated in the bridge
management program within 45 days of the completion of the field
portion of the inspection. FRA stipulates that a bridge inspection is
not complete until the report of the inspection is filed and available
to the persons who are responsible for the management of the bridges
inspected. This time period does not include the time used by a
consultant or in-house engineering group to complete an analysis of the
results of the inspection, and it is not expected that the analysis
need be completed within that time period. In cases where a detailed
analysis is required, FRA intends that the inspection report on which
the analysis is based would be separated from the analysis and filed
within the required time frame. As consensus was not reached by the
RBWG, FRA requests comments with regard to this issue.

    Paragraph (f). FRA proposes that each bridge inspection program
shall specify the retention period and location for bridge inspection
records. There are several good reasons for retaining bridge inspection
reports over the period of several years or inspection cycles. First, a
comparison of successive reports can reveal any accelerating rates of
deterioration or degradation of bridge components. Second, an audit or
review of the effectiveness of a bridge inspection program requires
comparison of previous inspection reports with the actual condition of
a bridge included in the audit. The practice of comparing previous
inspection reports with actual bridge conditions has been followed by
FRA for more than a decade when evaluating railroad bridge management
programs. It is provides a valuable factor in determining the
effectiveness of a railroad's program.

Section 237.113 Review of Bridge Inspection Reports

    The RSIA requires that an engineer who is competent in the field of
railroad bridge engineering review all inspection reports and determine
whether bridges are being inspected according to the applicable
procedures and frequencies, and review any items noted by an inspector
as exceptions. Public Law 110-432, Division A, Section 417(b)(7). In
this section, FRA proposes that responsible railroad bridge supervisors
and railroad bridge engineers review bridge inspection reports. Bridge
inspection is usually a multi-tiered procedure. The inspector reports
on the conditions noted in the inspection, but an engineer will
necessarily evaluate those noted conditions and determine what, if any,
further action is required.
    FRA does not intend that a railroad bridge engineer must review
every inspection report, so long as the responsible management
personnel keep track of the conduct of inspections to see that they are
performed in accordance with the schedule and other requirements of
this rule and the railroad's program. It should be a simple matter for
the inspector to indicate on a report whether or not the report would
require higher-level or engineering review. That could provide that the
engineering staff would review the reports that indicate problems or
issues for them to resolve, and would relieve the engineers from
reviewing a majority of the reports that do not indicate an issue
needing their review. Section 237.155 audits of inspections, which
follow, would include a provision for sampling of routine inspection
reports to assure that the inspectors are properly identifying reports
that require higher-level review.

Section 237.131 Scope

    In subpart F, FRA proposes minimum standards to be incorporated in
railroad bridge management programs to provide for adequate design and
effective supervision of bridge modification and repair which will
materially modify the capacity of the bridge or the stresses in any
primary load carrying component of the bridge. This section provides
for correct design and adequate supervision of repair and modification
of bridges where the work could materially affect the capacity of the
bridge, or its continued integrity. FRA does not intend that minor
repairs that do not affect the capacity of the bridge must be designed
by an engineer, but the supervision of that work should be performed by
a person who is competent to assure that the work does not
inadvertently compromise the integrity of the bridge. For instance, arc
welding handrails to the members of a through truss might appear to
some to be a minor repair, but it could seriously compromise the
structural integrity of the bridge.

Section 237.133 Design

    In this section, FRA proposes that each repair or modification to a
bridge pursuant to this part shall be designed by a railroad bridge
engineer. Design of entire railroad bridges, modifications and repairs
which materially modify the capacity of the bridge or the stresses in
any primary load-carrying component of the bridge require the
intelligent application of the principles of engineering and can only
be performed by an engineer with training and experience in the field
of railroad bridges. Railroads have typically issued standard
instructions for the performance of common maintenance repairs, such as
replacement or upgrading of components of timber trestles. This section
specifically permits such a practice.

Section 237.135 Supervision of Repairs and Modifications

    In this section, FRA proposes that each repair or modification
pursuant to this part shall be performed under the immediate
supervision of a railroad bridge supervisor as defined in Sec.  237.57
of this part and who is designated and authorized by the track owner to
supervise the particular work to be performed. Modifications and
repairs which materially modify the capacity of the bridge or the
stresses in any primary load-carrying component of the bridge must be
performed according to the specific or general specifications and
instructions issued by a railroad bridge engineer. Particularly when
trains are permitted to pass over a bridge which is being repaired or
modified, the supervisor at the bridge must be able to make the
necessary determination to either permit, restrict or halt train
operation depending on the state of the bridge.

Section 237.151 Scope

    Documentation is essential to any effective management program. In
subpart G, FRA proposes minimum standards to be incorporated in
railroad bridge management programs to provide for verification of the
effectiveness of the program and the accuracy of the information
developed thereby, by the track owner and by FRA to evaluate compliance
with this regulation.

Section 237.153 Audits, General

    In this section, FRA proposes that each program adopted to comply
with this part include provisions for auditing the effectiveness of the
several provisions of that program, including the validity of bridge
inspection reports and bridge inventory data, and the correct
application of movement restrictions to railroad equipment of
exceptional weight or configuration. Effective management of a safety-
critical program such as this requires an adequate level of checks to
assure that the requisite work is being performed correctly.

Section 237.155 Audits of Inspections

    FRA has found over the years during which it has conducted
evaluations of railroad bridge programs that one of the most important
indicators of the effectiveness of a program is a comparison of recent
bridge inspection reports against actual conditions found at the
subject bridges. This is fundamental to an effective audit of a bridge
management program. Therefore, in this section, FRA proposes that each
bridge management program incorporate provisions for an internal audit.

Section 237.157 Documents and Records

    In this section, FRA proposes that each track owner required to
implement a bridge management program and keep records under this part
make those program documents and records available for inspection and
reproduction by the FRA. This section addresses Congress' mandate in
the RSIA to establish a program to periodically review bridge
inspection and maintenance data from railroad carrier bridge inspectors
and FRA bridge

experts. Public Law 110-432, Division A, Section 417(d). As in the case
of all railroad safety regulations, FRA has an enforcement
responsibility. FRA will require access to the vital documents and
records of the various bridge management programs to enable it to carry
out that responsibility.
    Paragraphs (a) and (b). In these paragraphs, FRA proposes minimum
standards for electronic record-keeping provisions that a track owner
may elect to utilize to comply with the record-keeping provisions of
this part. The RBWG was unable to reach consensus on these paragraphs.
FRA therefore solicits comments on whether or not this provision is
needed to protect the utility, integrity and security of an electronic
recordkeeping system that would be applied to a railroad bridge
management system.

Appendix A to Part 237--Statement of Agency Policy on the Safety of
Railroad Bridges

    A Statement of Agency Policy on the Safety of Railroad Bridges was
originally published by FRA in 2000 as Appendix C of the Federal Track
Safety Standards, 49 CFR Part 213. With the issuance of 49 CFR Part
237, Railroad Bridge Safety Standards, certain non-regulatory
provisions in that Policy Statement have been incorporated in that
regulation. However, FRA has determined that other non-regulatory items
are still useful as information and guidance. Those provisions of the
Policy Statement are therefore retained and placed in this Appendix in
lieu of their former location in the Track Safety Standards. FRA
requests comment on this appendix, and is interested in whether the
public sees value in having this additional guidance.

Appendix B to Part 237--Schedule of Civil Penalties

    Appendix B to part 237 will contain a schedule of civil penalties
for use in connection with this part. Consistent with FRA's Statement
of Agency Policy Concerning Enforcement of the Federal Railroad Safety
Laws, a 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.

V. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule has been evaluated in accordance with existing
policies and procedures and determined to be non-significant under both
Executive Order 128566 and DOT policies and procedures. See 44 FR
11034; February 26, 1979. FRA has prepared and placed in the docket a
regulatory impact analysis addressing the economic impacts from this
proposed rule.
    As part of the regulatory impact analysis FRA has assessed
quantitative measurements of the cost and benefit streams expected from
the adoption of this proposed rule. For the twenty-year period the
estimated quantified costs total $159.2 million, and have a present
value (PV, 7%) of $80.5 million. For the same period of time the
estimated quantified benefits total $19.4 million and have a PV(7%) of
$9.8 million. These benefits are exclusive of long-term efficiencies to
the railroads with respect to conservation of the capital value of the
structures in question. Very often targeted repairs or restoration at
an early stage in the deterioration of a bridge may significantly
extend the useful life of a bridge. The benefits also do not consider
the potential for a catastrophic event resulting in a bridge failure
and consequent fatalities to railroad personnel, rail passengers, or
persons underneath the bridge. Although FRA has verified through its
bridge program that most railroads properly manage their bridges most
of the time, in the recent past FRA has also determined circumstances--
even on Class I railroads--where proper inspections or repairs have
been inappropriately deferred. Accordingly, this rule offers the
opportunity to capture and extend the current heightened attention to
bridge management achieved through industry and FRA efforts over the
past several years.

B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive
Order 13272 require a review of proposed and final rules to assess
their impacts on small entities. An agency must prepare an initial
regulatory flexibility analysis (IRFA) unless it determines and
certifies that a rule, if promulgated, would not have a significant
impact on a substantial number of small entities. DOT has not
determined whether this proposed rule would have a significant economic
impact on a substantial number of small entities. Therefore, we are
publishing this IRFA to aid the public in commenting on the potential
small business impacts of the proposals in this NPRM. We invite all
interested parties to submit data and information regarding the
potential economic impact that would result from adoption of the
proposals in this NPRM. We will consider all comments received in the
public comment process when making a determination in the final
Regulatory Flexibility Assessment (RFA).
    In accordance with the Regulatory Flexibility Act, an IRFA must
contain:
    (1) A description of the reasons why action by the agency is being
considered;
    (2) A succinct statement of the objectives of, and the legal basis
for, the proposed rule;
    (3) A description of, and where feasible, an estimate of the number
of small entities to which the proposed rule will apply;
    (4) A description of the projected reporting, recordkeeping and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record;
    (5) An identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule; and
    (6) A description of any significant alternatives to the proposed
rule that accomplish the stated objectives of applicable statutes and
which minimize any significant economic impact of the proposed rule on
small entities. 5 U.S.C. 603(b), (c).
1. Reasons for Considering Agency Action
    As discussed in section I of the preamble to the notice of proposed
rulemaking, the structural integrity of bridges that carry railroad
tracks is important because the severity of a train accident is usually
compounded when a bridge is involved, regardless of the cause of the
accident. In 2000, FRA published a final statement of agency policy for
the safety of railroad bridges establishing criteria to ensure the
structural integrity of bridges that carry railroad tracks. RSIA 2008
directs FRA to issue, by October 16, 2009, regulations requiring
railroad track owners to adopt and follow specific procedures to
protect the safety of their bridges.
    There are over 100,000 railroad bridges in the United States.
Federal regulations offer the benefit of uniformity that would allow
railroads that operate in more than one State to develop and implement
a single management program that would apply to all of their railroad
bridges, which support one or more tracks, rather than more than one
program each tailored to

meet the different requirements of different State or local
jurisdictions.
2. Objectives and Legal Basis for Proposed Rule
(a). Legal Basis for Proposed Rule
    As discussed earlier in the preamble, FRA is issuing this proposed
rule to promulgate minimum bridge safety standards as mandated by the
Railroad Safety Improvement Act of 2008 section 417, Public Law 110-432
(Oct. 16, 2008) (codified at 9 U.S.C. 20157).
(b). Objective of Proposed Rule
    As stated in the RSIA 2008, the objective of this rulemaking is to
prevent the deterioration of railroad bridges and reduce the risk of
human casualties, environmental damage, and disruption to the Nation's
railroad transportation system that would result from a catastrophic
bridge failure.
3. Description and Estimate of Small Entities Affected
    The ``universe'' of the entities to be considered in an IRFA
generally includes only those small entities that can reasonably be
expected to be directly regulated by the proposed action. Two types of
small entities are potentially affected by this proposed rule: (1)
Railroads that own track supported by a bridge, and (2) governmental
jurisdictions of small communities that own bridges.
    ``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines
a ``small entity'' as having the same meaning as ``small business
concern'' under section 3 of the Small Business Act. This includes any
small business concern that is independently owned and operated, and is
not dominant in its field of operation. Section 601(4) includes not-
for-profit enterprises that are independently owned and operated, and
are not dominant in their field of operations within the definition of
``small entities.'' Additionally, section 601(5) defines as ``small
entities'' governments of cities, counties, towns, townships, villages,
school districts, or special districts with populations less than
50,000.
    The U.S. Small Business Administration (SBA) stipulates ``size
standards'' for small entities. It provides that the largest a for-
profit railroad business firm may be (and still classify as a ``small
entity'') is 1,500 employees for ``Line-Haul Operating'' railroads, and
500 employees for ``Short-Line Operating'' railroads.\1\
---------------------------------------------------------------------------

    \1\ ``Table of Size Standards,'' U.S. Small Business
Administration, January 31, 1996, 13 CFR Part 121. See also NAICS
Codes 482111 and 482112.
---------------------------------------------------------------------------

    SBA size standards may be altered by Federal agencies in
consultation with SBA, and in conjunction with public comment. Pursuant
to the authority provided to it by SBA, FRA has published a final
policy, which formally establishes small entities as railroads that
meet the line haulage revenue requirements of a Class III railroad.\2\
Currently, the revenue requirements are $20 million or less in annual
operating revenue, adjusted annually for inflation. The $20 million
limit (adjusted annually for inflation) is based on the Surface
Transportation Board's threshold of a Class III railroad carrier, which
is adjusted by applying the railroad revenue deflator adjustment.\3\
The same dollar limit on revenues is established to determine whether a
railroad shipper or contractor is a small entity. DOT proposes to use
this definition for this rulemaking.
---------------------------------------------------------------------------

    \2\ See 68 FR 24891 (May 9, 2003).
    \3\ For further information on the calculation of the specific
dollar limit, please see 49 CFR Part 1201.
---------------------------------------------------------------------------

(a). Governmental Jurisdictions of Small Communities
    Small entities that are classified as governmental jurisdictions of
small communities may also be affected by the proposals in this NPRM.
As stated above, and defined by SBA, this term refers to governments of
cities, counties, towns, townships, villages, school districts, or
special districts with populations of less than 50,000. The potential
impact of this rulemaking to these entities is related to their
ownership of a bridge and possibly the track supported by the bridge as
well. Such bridges are usually built by communities, with railroad
collaboration, to achieve highway-rail grade separation. FRA does not
have information regarding the number of small communities that own
such bridges. In such cases, however, the government entity and the
railroad usually apportion ownership, expenses and maintenance
responsibility according to the provisions of an order from the State
regulatory agency that governs highway/railroad crossing improvements.
It is most common for the railroad to retain the responsibility for the
actual inspection and management of the bridge. To the extent that
agreements require cost-sharing and existing bridge management programs
would have to be enhanced to meet the proposed regulation, there may be
some burden passed on to small government jurisdictions; however, such
burden is not expected to be substantial. To the extent that any burden
does result, it is likely that insurance premiums will be adjusted to
reflect the risk reduction, resulting in some level of savings in
addition to the cost of the program enhancement. This would, of course,
be in addition to safety benefits related to fewer accidents.
    Accordingly, FRA cannot accurately assess the number of
governmental jurisdictions of small communities that would be directly
impacted by this proposed regulation and what the impact would be. FRA
requests comment from affected governmental jurisdictions as to the
impact the proposed rule will have on them.
(b). Railroads
    There are approximately 687 small railroads meeting the definition
of ``small entity'' as described above. FRA estimates that
approximately 95 percent of these small entities, or approximately 653,
own track supported by a bridge. Because the proposed rule would apply
to all of these small railroads, we have concluded that a substantial
number of such entities would be impacted. Note, however, that
approximately 90 of these railroads are subsidiaries of large short-
line holding companies with the expertise and resources comparable to
larger railroads. In addition, absent this rulemaking, most railroads
that own track supported by bridges, including many of the railroads
identified as small entities, would to some extent voluntarily incur
the expense associated with implementation of the bridge management
programs in accordance with the requirements proposed by FRA to address
the risk associated with structural failure of a bridge. In fact, the
ASLRRA, which represents most of the small railroads impacted by this
rulemaking, has developed a model bridge management program intended to
keep bridge and culvert infrastructure safe and structurally sound.
Member railroads are expected to take the generic plan and customize to
meet their specific circumstances and meet the requirements proposed in
this notice. Such initiative would minimize the program development
cost. Nevertheless, program implementation costs may be substantial for
those small railroads that do not currently have bridge management
programs and do not inspect railroad bridges regularly.
    While we recognize that some small railroads do not currently have
bridge management programs, we believe that many railroads have already
made or are making the transition to track structures and bridges
capable of handling 286,000-pound cars in line with the general
movement in the industry toward these heavier freight cars. To protect
such investments, which are

usually quite significant, railroads are already implementing bridge
management programs.
    For example, in 2005, the Texas Transportation Institute reported
that 42 percent of the short-line railroad miles that were operated in
Texas that year had already been upgraded, nine percent would not need
an upgrade, and 47 percent needed upgrading if they wanted to transport
any type of 286,000-pound shipments.\4\ In addition, the results of a
1998-1999 survey conducted by the ASLRRA indicated that 41 percent of
respondent short-line railroads could handle 286,000-pound rail cars
and 87 percent of the respondent short-line railroads indicated that
they would need to accommodate 286,000-pound railcars in the future.\5\
---------------------------------------------------------------------------

    \4\ Jeffrey E. Warner & Manuel Solari Terra, ``Assessment of
Texas Short Line Railroads,'' Texas Transportation Institute (Nov.
15, 2005).
    \5\ The Ten-Year Needs of Short Line and Regional Railroads,
Standing Committee on Rail Transportation, American Association of
State Highway and Transportation Officials, Washington, DC (Dec.
1999). This report was based on a survey conducted by the ASLRRA in
1998 and 1999 with data from 1997.
---------------------------------------------------------------------------

    In addition, at least one Class I railroad has arranged for short-
line and regional railroads that connect with it to send participants
to several multi-day bridge inspection classes this year.
    In general, implementation of the proposed rule will significantly
burden only a small portion of the small railroads potentially
affected. We invite commenters to submit information that might assist
us in assessing the cost impacts on small railroads of the proposals in
this NPRM.
4. Description of Reporting, Recordkeeping, and Other Compliance
Requirements and Impacts on Small Entities Resulting From Specific
Proposed Requirements
    The impacts from this proposed rulemaking would primarily result
from complying with the requirements for the adoption of bridge
management programs. The proposed rule provides affected entities 6 to
24 month periods of time in which to adopt such programs. Class III
railroads would have the full 24 month period.
    (a). Recordkeeping Requirement of Proposed Sec.  237.35
    Proposed Sec.  237.35 requires that each bridge management program
include an accurate inventory of railroad bridges; a record of the safe
load capacity of each bridge; a provision to obtain and maintain the
design documents of each bridge if available, and to document all
repairs, modifications, and inspections of each bridge; and a bridge
inspection program covering the method of documenting inspections
including standard forms and formats.
    FRA believes that most railroads, regardless of size, already
maintain an accurate inventory of their railroad bridges, records of
the safe load capacity of their bridges, and design documents to the
extent they are available. Likewise, most railroads maintain documents
related to all repairs, modifications, and inspections of bridges
because it is good business practice to do so. The States of Ohio,
Michigan, and New York have existing bridge regulations requiring
railroads to maintain bridge inventories and inspect bridges annually.
There are approximately 100 small railroads that operate in those
States. However, some railroads may not include in their documentation
some of the particular data items specified in the proposal. Thus these
requirements would impose a nominal additional recordkeeping burden on
some small railroads.
    As noted above not all small railroads have inspection programs.
The ASLRRA, however, has developed a model program for its members,
thus minimizing the burden associated with development of such plans.
FRA estimates that the burden for individual railroad customization of
the program would range from $570, for the smaller Class III railroads,
to $3,000 for the larger Class III railroads. Costs associated with
maintenance, modifications and updates to bridge management plans will
average approximately 15% of the initial development costs, or between
$85 and $450 annually. Therefore, this reporting requirement would have
very little impact on small entities.
    Determination of bridge load capacity would be made by a bridge
engineer, who is a person that is determined by the bridge owner to be
competent to perform the functions necessary for the determination of
load capacity. Bridge inspection procedures would be specified by a
railroad bridge engineer who is designated as responsible for the
conduct and review of the inspections.
(b). Bridge Inspections
    Bridge management programs would be required to contain bridge
inspection programs. Proposed subpart E requires calendar year
inspection of bridges according to specified procedures as well as
special inspection of bridges that might be damaged by a natural or
accidental event. This subpart also specifies that bridge inspections
must be conducted under the direct supervision of a designated bridge
inspector who is a person determined to be technically competent to
supervise the construction, modification or repair of a railroad
bridge. FRA expects there would be a significant increase in the number
of bridge inspections conducted by small railroads or their
contractors. FRA requests comments and input regarding the extent to
which Class III railroads already conduct annual inspection of bridges
and the extent to which they would have to conduct additional bridge
inspections.
    Most small railroads do not have bridge engineers or inspectors on
staff. They contract out bridge inspections. A typical contract will be
for the inspection of most if not all the bridges the railroad owns,
with delivery of a final report addressing the state of all bridges.
Interim reports may be provided to the railroad as necessary on bridges
requiring more immediate attention. FRA believes that small railroads
will take advantage of such flexibility and require contractors to file
interim reports.
    Some States provide short-line railroads funding via grants and
loans for infrastructure improvements including bridge rehabilitation;
track maintenance; and bridge inspection. For instance, the Tennessee
Department of Transportation (DOT) provides significant grants for such
projects to most of the 20 Class III railroads in the State.\6\
Pennsylvania DOT administers a matching grant program to support
freight railroad maintenance and construction costs.
---------------------------------------------------------------------------

    \6\ U.S. General Accounting Office, ``Railroad Bridges and
Tunnels, Federal Role in Providing Safety Oversight and Freight
Infrastructure Investment Could Be Better Targeted,'' August 2007
(GAO-07-770).
---------------------------------------------------------------------------

    FRA believes that small railroads own or would otherwise be
responsible for inspecting approximately 20,000 bridges. FRA estimates
that the average cost per bridge inspection is $750 and that
approximately 10,000 bridges are being inspected less frequently than
once a year, while 5,000 are not inspected at all. Some small railroads
may own track supported by several bridges, especially in some areas
where the terrain requires such structures. FRA requests comment
regarding the level of cost burden that the proposed annual inspection
would impose.
(c). Determination of Bridge Load Capacities
    Proposed Subpart D requires the determination of bridge load
capacities. FRA believes that railroad bridge owners are generally
aware of bridge load capacities. Nevertheless, it is likely that some
railroads will have to take action to verify this information in order

to develop the type of documentation required by this subpart. Bridge
load capacity information is vital to ensuring that safe capacity is
not exceeded. Small railroads impacted by this requirement would likely
have a contractor perform such calculations.
(d). Repair and Modification of Bridges
    Proposed Subpart F prescribes minimum standards for the bridge
modification and repair that will materially modify the capacity of a
bridge or the stresses in any primary load carrying component of the
bridge. Modifications and repairs to bridges (except for minor
modifications and repairs) would have to be designed by railroad bridge
engineers, and the work would have to be supervised by designated
bridge supervisors. Small railroads will generally contract out such
modifications and repairs. Contractors as common practice meet the
design and supervision requirements proposed. Thus, the additional cost
of such compliance with this requirement is not important to this
assessment. DOT believes that there would be no additional burden
imposed on small entities as a result of this requirement.
(e). Audits
    Each program would have to include provisions for auditing the
effectiveness of several provisions of the program, including the
validity of bridge inspection reports and bridge inventory data, and
the correct application of movement restrictions to railroad equipment
of exceptional weight or configuration. FRA anticipates that Class III
railroad audits would generally be performed by a company official
following guidance in the ASLRRA model program and without assistance
from an external financial or engineering auditor.
5. Identification of Relevant Duplicative, Overlapping, or Conflicting
Federal Rules
    There are no Federal rules that would duplicate, overlap, or
conflict with this proposed rule.
6. Alternatives Considered
    In proposed Sec.  237.33, FRA sets the schedule for railroads to
adopt bridge safety management programs. In consideration of the impact
on small railroads that may not already have such programs, this
schedule provides small railroads with an additional 18 months over
Class I carriers and an additional 12 months over Class II carriers to
adopt these.
    FRA has identified no additional significant alternative to the
proposed rule which satisfies the mandate of RSIA 2008 or meets the
agency's objective in promulgating this rule, and that would minimize
the economic impact of the proposed rule on small entities. As in all
aspects of this IRFA, FRA requests comments on this finding of no
significant alternative related to small entities.
    The process by which this proposed rule was developed provided
outreach to small entities. As noted in section III of this notice,
this notice was developed in consultation with industry representatives
via the Railroad Safety Advisory Committee (RSAC), which includes small
railroad representatives. On December 10, 2008 the RSAC referred to the
Railroad Bridge Working Group, which had been established in March
2008, to develop a draft rule requiring owner of track carried on one
or more railroad bridges to adopt a bridge safety management program to
reduce the risk of human casualties, environmental damage, and
disruption to the Nations' railroad transportation system that would
result from catastrophic bridge failure. The Working Group met twice,
on January 28-29, 2009 and February 23-25, 2009. Small railroad
representatives participated in both meetings and raised issues of
concern to small railroads. Of specific concern to small railroads that
own several bridges and contract out the inspection of these bridges
was the ability to continue to enter into such contractual agreements
structured such that final inspection reports are submitted as part of
a single report at the completion of the contract, which could span
several months. This proposed rule takes into account this expressed
concern and accommodates such current contract structures, as long as
interim reports are filed.
    Subsequent to publication of this notice of proposed rulemaking,
FRA will hold a public hearing if it is requested. At that time, FRA
will gather more information, including the rule's potential impact on
small entities, and FRA encourages the active participation of any
small entity potentially affected.

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that would contain the new information collection
requirements are noted, and the estimated times to fulfill each of the
requirements are as follows:

----------------------------------------------------------------------------------------------------------------
                                                        Total annual        Average time per      Total annual
         CFR section           Respondent universe        responses             response          burden hours
----------------------------------------------------------------------------------------------------------------
237.7--Notifications to FRA   727 Railroads.......  15 notifications....  90 minutes..........             22.5
 of Assignment of Bridge
 Responsibility.
--Signed Statement by         727 Railroads.......  15 signed statements  30 minutes..........              7.5
 Assignee Concerning Bridge
 Responsibility.
237.13--Waivers--Petitions..  727 Railroads.......  12 petitions........  4 hours.............             48
237.33--Development/Adoption  727 Railroads.......  727 plans...........  Varies..............         20,474
 of Bridge Management
 Program.
237.59--Designation of        727 Railroads.......  200 designations....  30 minutes..........            100
 Qualified Individuals.
237.73--Determination of      727 Railroads.......  2,000 determinations  8 hours.............         16,000
 Bridge Load Capacities.
237.75--Issuance of           727 Railroads.......  2,000 instructions..  2 hours.............          4,000
 Instructions to Railroad
 Personnel by Track Owner.
237.107--Special Bridge       727 Railroads.......  50 insp. and reports/ 40 hours............          2,000
 Inspections and Reports/                            rcds.
 Records.
237.109 and 237.111--         727 Railroads.......  18,000 insp. and      4 hours.............         72,000
 Nationwide Annual Bridge                            reports.
 Inspections--Reports.
--Records...................  727 Railroads.......  18,000 records......  1 hour..............         18,000
237.113--Review of Bridge     727 Railroads.......  2,000 insp. rpt.      30 minutes..........          1,000
 Inspection Reports by RR                            reviews.
 Bridge Engineers.
--Prescription of Bridge      727 Railroads.......  200 insp. proc.       30 minutes..........            100
 Insp. Procedure                                     modifications.
 Modifications After Review.
237.133--Design of Bridge     727 Railroads.......  500 designs.........  16 hours............          8,000
 Modifications or Bridge
 Repairs.

237.155--Audits of            727 Railroads.......  727 insp. audits....  80 hours/24 hours/6           5,746
 Inspections.                                                              hours.
237.157--Documents and        727 Railroads.......  5 systems...........  80 hours............            400
 Records.
--Establishment of RR
 Monitoring and Info.
 Technology Security Systems
 for Electronic
 Recordkeeping.
--Employees Trained in        727 Railroads.......  100 employees.......  8 hours.............            800
 System.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning: whether these
information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized. For information or a copy of
the paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, at<PHONE_NUMBER>, or Ms. Nakia Jackson
at<PHONE_NUMBER>.
    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan or Ms. Nakia Jackson, Federal Railroad Administration, 1200 New
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also
be submitted via e-mail to Mr. Brogan or Ms. Jackson at the following
addresses<EMAIL_ADDRESS><EMAIL_ADDRESS>    OMB is required to make a decision concerning the collection of
information requirements contained in this proposed 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. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the 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 proposed 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 NPRM that might
trigger the need for a more detailed environmental review. As a result,
FRA finds that this proposed rule is not a major Federal action
significantly affecting the quality of the human environment.

E. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various 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.
    This proposed rule has preemptive effect. Subject to a limited
exception for essentially local safety or security hazards, the
requirements of the final rule would be intended to establish a uniform
Federal safety standard that must be met, and State requirements
covering the same subject would be displaced, whether those standards
are in the form of State statutes, regulations, local ordinances, or
other forms of State law, including common law. Section 20106 of Title
49 of the United States Code provides that all regulations prescribed
by the Secretary related to railroad safety preempt any State law,
regulation, or order covering the same subject matter, except a
provision necessary to eliminate or reduce an essentially local safety
or security hazard that is not incompatible with a Federal law,
regulation, or order, and that does not unreasonably burden interstate
commerce. This is consistent with past practice at FRA, and within the
Department of Transportation.
    FRA has analyzed this proposed rule in accordance with the
principles and criteria contained in Executive Order 13132. This final
rule will not have a substantial effect on the States, on the
relationship between the Federal government and the States, or on the
distribution of power and responsibilities among various levels of
government. This final rule will not have federalism implications that
impose any direct compliance costs on State and local governments.
    FRA notes that RSAC, which endorsed and recommended the majority of
this final rule, has as permanent members two organizations
representing State and local interests: AASHTO and ASRSM. Both of these
State organizations concurred with the

RSAC recommendation endorsing this proposed rule. RSAC regularly
provides recommendations to the FRA Administrator for solutions to
regulatory issues that reflect significant input from its State
members. To date, FRA has received no indication of concerns about the
federalism implications of this rulemaking from these representatives
or from any other representatives of State government. Consequently,
FRA concludes that this proposed rule has no federalism implications.
    This regulation does not preempt an action under State law seeking
damages for personal injury, death, or property damage alleging that a
party has failed to comply with the Federal standard of care
established by this part, including a bridge management program
required by this part. Provisions of a bridge management program which
exceed the requirements of this part are not included in the Federal
standard of care. It is strongly in the interest of railroad safety for
railroads to exceed the requirements of Federal law and FRA encourages
railroads to do so. A railroad would be discouraged from setting a
higher standard for itself if it would be held liable in tort for
exceeding the requirements of Federal law, but failing to attain the
higher standard it set for itself. The statute supports this
distinction.
    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 v. Canadian Pacific Ry. Co., 507 F.Supp.2d 1006
(D.Minn., 2007) 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. 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 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.

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 proposed 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 proposed rule in accordance with Executive Order 13211. FRA has
determined that this proposed rule is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
Consequently, FRA has determined that this proposed 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

49 CFR Part 213

    Penalties, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 237

    Penalties, Railroad safety, Bridge safety, Reporting and
recordkeeping requirements.

The Proposed Rule

    In consideration of the foregoing, FRA proposes to amend 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).

Appendix C--[Removed]

    2. In part 213, remove appendix C.
    3. Add part 237 to read as follows:

PART 237--BRIDGE SAFETY STANDARDS

Subpart A--General
Sec.
237.1 Scope of part.
237.3 Preemptive effect.
237.5 Application.
237.7 Responsibility for compliance.
237.9 Definitions.
237.11 Penalties.
237.13 Waivers.
237.15 Information collection [reserved].
Subpart B--Railroad Bridge Safety Assurance
237.31 Scope.
237.33 Adoption of bridge management programs.
237.35 Content of bridge management programs.
Subpart C--Qualifications and Designations of Responsible Persons
237.51 Scope.
237.53 eRailroad bridge engineers.
237.55 Railroad bridge inspectors.
237.57 Railroad bridge supervisors.
237.59 Designation of individuals.
Subpart D--Capacity of Bridges
237.71 Scope.
237.73 Determination of bridge load capacities.
237.75 Protection of bridges from over-weight and over-dimension
loads.
Subpart E--Bridge Inspection
237.101 Scope.
237.103 Scheduling of bridge inspections.
237.105 Bridge inspection procedures.
237.107 Special inspections.
237.109 Conduct of bridge inspections.
237.111 Bridge inspection records.
237.113 Review of bridge inspection reports.
Subpart F--Repair and Modification of Bridges
237.131 Scope.
237.133 Design.
237.135 Supervision of Repairs and Modifications.
Subpart G--Documentation, Records and Audits of Bridge Management
Programs
237.151 Scope.
237.153 Audits, general.
237.155 Audits of inspections.
237.157 Documents and records.
Appendix A--Agency Policy on the Safety of Railroad Bridges
Appendix B--Schedule of Civil Penalties [reserved]

    Authority: 49 U.S.C. 20102-20114; P.L. 110-432, section 417; 28
U.S.C. 2461, note; and 49 CFR 1.49(oo).

Subpart A--General

Sec.  237.1  Scope of part.

    This part prescribes minimum safety requirements for management of
railroad bridges which support one or more tracks. This part does not
restrict a track owner from adopting and enforcing additional or more
stringent requirements not inconsistent with this part.

Sec.  237.3  Preemptive effect.

    (a) Under 49 U.S.C. 20106, issuance of these regulations preempts
any State law, regulation, or order covering the same subject matter,
except an additional or more stringent law, regulation, or order that
is necessary to eliminate or reduce an essentially local safety hazard;
is not incompatible with a law, regulation, or order of the United
States Government; and that does not impose an unreasonable burden on
interstate commerce.
    (b) This part establishes a Federal standard of care for the
maintenance and inspection of railroad bridges. This part does not
preempt an action under State law seeking damages for personal injury,
death, or property damage alleging that a party has failed to comply
with the Federal standard of care established by this part, including a
bridge management program required by this part. Provisions of a bridge
management program which exceed the requirements of this part are not
included in the Federal standard of care.

Sec.  237.5  Application.

    (a) Except as provided in paragraphs (b) or (c) of this section,
this part applies to all owners of railroad track with a gage of two
feet or more and which is supported by a bridge.
    (b) This part does not apply to bridges on track used exclusively
for rapid transit operations in an urban area that are not connected
with the general railroad system of transportation.
    (c) This part does not apply to bridges located within an
installation which is not part of the general railroad system of
transportation and over which trains are not operated by a railroad.

Sec.  237.7  Responsibility for compliance.

    (a) Except as provided in paragraph (b) of this section, an owner
of track to which this part applies is responsible for compliance.
    (b) If an owner of track to which this part applies assigns
responsibility for the bridges which carry the track to another person
(by lease or otherwise), written notification of the assignment shall
be provided to the appropriate FRA Regional Office at least 30 days in
advance of the assignment. The notification may be made by any party to
that assignment, but shall be in writing and include the following--
    (1) The name and address of the track owner;
    (2) The name and address of the person to whom responsibility is
assigned (assignee);
    (3) A statement of the exact relationship between the track owner
and the assignee;
    (4) A precise identification of the track segment and the
individual bridges in the assignment;
    (5) A statement as to the competence and ability of the assignee to
carry out the bridge safety duties of the track owner under this part;
and
    (6) A statement signed by the assignee acknowledging the assignment
to him of responsibility for purposes of compliance with this part.
    (c) The Administrator may hold the track owner or the assignee or
both responsible for compliance with this part and subject to penalties
under Sec.  237.11.
    (d) A common carrier by railroad which is directed by the Surface
Transportation Board to provide service over the track of another
railroad under 49 U.S.C. 11123 is considered the owner of that track
for the purposes of the application of this part during the period the
directed service order remains in effect.
    (e) When any person, including a contractor for a railroad or track
owner, performs any function required by this part, that person is
required to perform that function in accordance with this part.
    (f) Where an owner of track to which this part applies has
previously assigned responsibility for a segment of track to another
person as prescribed in 49 CFR 213.5(c), additional notification to FRA
is not required, and the Administrator may hold the track owner or the
assignee or both responsible for compliance with this part and subject
to penalties under Sec.  237.11.

Sec.  237.9  Definitions.

    For the purposes of this part--
    Bridge modification means a change to the configuration of a
railroad bridge that affects the load capacity of the bridge.
    Bridge repair means remediation of damage or deterioration which
has affected the structural integrity of a railroad bridge.
    Railroad bridge means any structure with a deck, regardless of
length, which supports one or more railroad tracks, and any other
undergrade structure with an individual span length of 10 feet or more
located at such a depth that it is affected by live loads.
    Track owner means a person responsible for compliance in accordance
with Sec.  237.7 of this chapter.

Sec.  237.11  Penalties.

    (a) Any person who violates any requirement of this part or causes
the violation of any such requirement is subject to a civil penalty of
at least $650 and not more than $25,000 per violation, except that:
Penalties may be assessed against individuals only for willful
violations, and, where a grossly negligent violation or a pattern of
repeated violations has created an imminent hazard of death or injury
to persons, or has caused death or injury, a penalty not to exceed
$100,000 per violation may be assessed. ``Person'' means an entity of
any type covered under 1 U.S.C. 1, including but not limited to the
following: a railroad; a manager, supervisor, official, or other
employee or agent of a railroad; any owner, manufacturer, lessor, or
lessee of railroad equipment, track, or facilities; any independent
contractor providing goods or services to a railroad; any employee of
such owner, manufacturer, lessor, lessee, or independent contractor;
and anyone held by the Federal Railroad Administrator to be responsible
under Sec.  237.7(d). Each day a violation continues shall constitute a
separate offense. See Appendix B to this part for a statement of agency
civil penalty policy.
    (b) Any person who knowingly and willfully falsifies a record or
report required by this part may be subject to criminal penalties under
49 U.S.C. 21311.

Sec.  237.13  Waivers.

    Each petition for a waiver under this section shall be filed in the
manner and contain the information required by part 211 of this
chapter.

Sec.  237.15  Information collection.

    (a) The information collection requirements of this part were
reviewed by the Office of Management and Budget pursuant to the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and are
assigned OMB control number XXXX-XXXX.
    (b) The information collection requirements are found in the
following sections: Sec. Sec.  237.XX, 237.XX

Subpart B--Railroad Bridge Safety Assurance

Sec.  237.31  Scope.

    This subpart prescribes minimum requirements for persons
responsible for railroad bridges to implement programs to assure the
structural integrity of those bridges and to protect the safe operation
of trains over those bridges.

Sec.  237.33  Adoption of bridge management programs.

    Each track owner shall adopt a bridge safety management program to
prevent the deterioration of railroad bridges by preserving their
capability to safely carry the traffic to be operated over them; and
reduce the risk of human casualties, environmental damage, and
disruption to the Nation's railroad transportation system that would
result from a catastrophic bridge failure, not later than the dates in
the following schedule:
    (a) (Effective date of the final rule + 6 months): Class I
carriers;
    (b) (Effective date of the final rule + 6 months): Owners of track
segments which are part of the general railroad system of
transportation and which carry more than ten scheduled passenger trains
per week;
    (c) (Effective date of the final rule + 12 months): Class II
carriers to which paragraph (b) of this section does not apply; and
    (d) (Effective date of the final rule + 24 months): All other track
owners subject to this part and not described above.

Sec.  237.35  Content of bridge management programs.

    Each bridge management program adopted in compliance with this part
shall include, as a minimum, the following provisions:
    (a) An accurate inventory of railroad bridges, which shall include
a unique identifier for each bridge, its location, configuration, type
of construction, number of spans, span lengths, and all other
information necessary to provide for the management of bridge safety;
    (b) A record of the safe load capacity of each bridge;
    (c) A provision to obtain and maintain the design documents of each
bridge if available, and to document all repairs, modifications, and
inspections of each bridge; and
    (d) A bridge inspection program covering as a minimum;
    (1) Inspection personnel safety considerations;
    (2) Types of inspection including required detail;
    (3) Definitions of defect levels along with associated condition
codes if condition codes are used;
    (4) The method of documenting inspections including standard forms
or formats,;
    (5) Structure type and component nomenclature; and
    (6) Numbering or identification protocol for substructure units,
spans, and individual components.

Subpart C--Qualifications and Designations of Responsible Persons

Sec.  237.51  Scope.

    This subpart prescribes minimum standards to be incorporated in
railroad bridge management programs for qualification and designation
of persons who perform safety-critical functions that affect the
integrity and safety of railroad bridges.

Sec.  237.53  Railroad bridge engineers.

    (a) For the purpose of compliance with this part, a railroad bridge
engineer shall be a person who is determined by the track owner to be
competent to perform the following functions as they apply to the
particular engineering work to be performed:
    (1) Determine the forces and stresses in railroad bridges and
bridge components;
    (2) Prescribe safe loading conditions for railroad bridges;
    (3) Prescribe inspection and maintenance procedures for railroad
bridges; and
    (4) Design repairs and modifications to railroad bridges.
    (b) The educational qualifications of a railroad bridge engineer
shall include either:
    (1) A bachelor's degree in engineering granted by a school of
engineering with at least one program accredited or recognized by the
Accreditation Board for Engineering and Technology (ABET) as a
professional engineering curriculum, or
    (2) Current registration as a professional engineer practicing
within his or her licensed scope of practice.
    (b) Nothing in this part is meant to affect the States' authority
to regulate the licensure of professional engineers.

Sec.  237.55  Railroad bridge inspectors.

    A railroad bridge inspector shall be a person who is determined by
the track

owner to be technically competent to view, measure, report and record
the condition of a railroad bridge and its individual components which
that person is designated to inspect. An inspector shall be designated
to authorize or restrict the operation of railroad traffic over a
bridge according to its immediate condition or state of repair.

Sec.  237.57  Railroad bridge supervisors.

    A railroad bridge supervisor shall be a person, regardless of
position title, who is determined by the track owner to be technically
competent to supervise the construction, modification or repair of a
railroad bridge in conformance with common or particular
specifications, plans and instructions applicable to the work to be
performed, and to authorize or restrict the operation of railroad
traffic over a bridge according to its immediate condition or state of
repair.

Sec.  237.59  Designations of individuals.

    Each track owner shall designate those individuals qualified as
railroad bridge engineers, railroad bridge inspectors and railroad
bridge supervisors. Each individual designation shall include the basis
for the designation in effect and shall be recorded.

Subpart D--Capacity of Bridges

Sec.  237.71  Scope.

    This subpart prescribes minimum standards to be incorporated in
railroad bridge management programs to prevent the operation of
equipment that could damage a bridge by exceeding safe stress levels in
bridge components or by extending beyond the horizontal or vertical
clearance limits of the bridge.

Sec.  237.73  Determination of bridge load capacities.

    (a) Each track owner shall determine the load capacity of each of
its railroad bridges. The load capacity need not be the ultimate or
maximum load capacity but a safe load capacity.
    (b) The load capacity of each bridge shall be documented in the
track owner's bridge management program, together with the method by
which the capacity was determined.
    (c) The determination of load capacity shall be made by a railroad
bridge engineer using appropriate engineering methods and standards
that are particularly applicable to railroad bridges.
    (d) Bridge load capacity may be determined from existing design and
modification records of a bridge, provided that the bridge
substantially conforms to its recorded configuration. Otherwise, the
load capacity of a bridge shall be determined by measurement and
calculation of the properties of its individual components, or other
methods as determined by a railroad bridge engineer.
    (e) If a track owner has a group of bridges for which the load
capacity has not already been determined, the owner shall schedule the
evaluation of those bridges according to their relative priority, to be
established by a railroad bridge engineer. The initial determination of