[Federal Register Volume 76, Number 63 (Friday, April 1, 2011)]
[Rules and Regulations]
[Pages 18073-18087]
[FR Doc No: 2011-7666]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

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

Track Safety Standards; Concrete Crossties

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

ACTION: Final rule.

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SUMMARY: FRA is amending the Federal Track Safety Standards to promote
the safety of railroad operations over track constructed with concrete
crossties. In particular, FRA is mandating specific requirements for
effective concrete crossties, for rail fastening systems connected to
concrete crossties, and for automated inspections of track constructed
with concrete crossties.

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

FOR FURTHER INFORMATION CONTACT: Kenneth Rusk, Staff Director, Office
of Railroad Safety, FRA, 1200 New Jersey Avenue, SE., Washington, DC
20590 (telephone:<PHONE_NUMBER>); or Sarah Grimmer Yurasko, Trial
Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE.,
Washington, DC 20950 (telephone:<PHONE_NUMBER>).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

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

I. Concrete Crossties Overview

A. Derailment in 2005 Near Home Valley, Washington

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

B. General Factual Background on Concrete Crossties

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

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

C. Statutory Mandate To Conduct This Rulemaking

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

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

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

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

    *Indicates associate, non-voting membership.

    When appropriate, FRA assigns a task to RSAC, and after
consideration and debate, RSAC may accept or reject the task. If the
task is accepted, RSAC establishes a working group that possesses the
appropriate expertise and representation of interests to develop
recommendations to FRA for action on the task. These recommendations
are developed by consensus. A working group may establish one or more
task forces to develop facts and options on a particular aspect of a
given task. The task force then provides that information to the
working group for consideration.
    If a working group comes to a unanimous consensus on
recommendations for action, the proposal is presented to the full RSAC
for a vote. If the proposal is accepted by a simple majority of RSAC,
the proposal is formally recommended to FRA. FRA then determines what
action to take on the recommendation. Because FRA staff members play an
active role at the working group level in discussing the issues and
options and in drafting the language of the consensus proposal, FRA is
often favorably inclined toward the RSAC recommendation.
    However, FRA is in no way bound to follow the recommendation, and
the agency exercises its independent judgment on whether the
recommended rule achieves the agency's regulatory goal, is soundly
supported, and is in accordance with policy and legal requirements.
Often, FRA varies in some respects from the RSAC recommendation in
developing the actual regulatory proposal or final rule. Any such
variations would be noted and explained in the rulemaking document
issued by FRA. If the working group or RSAC is unable to reach
consensus on recommendations for action, FRA will proceed to resolve
the issue through traditional rulemaking proceedings.

III. RSAC Track Safety Standards Working Group

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

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

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

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

IV. FRA's Approach to Concrete Crossties

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

A. Rail Cant

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

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

B. Automated Inspections

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

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

Concrete Crosstie Requirements

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

Automated Inspections

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

Concrete and Other Than Concrete Crossties

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

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

VI. Section-by-Section Analysis

Section 213.2 Preemptive Effect

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

Section 213.109 Crossties

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

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

Section 213.127 Rail Fastening Systems

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

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

Section 213.234 Automated Inspection of Track Constructed With Concrete
Crossties

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

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

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

VII. Regulatory Impact and Notices

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

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

B. Regulatory Flexibility Act and Executive Order 13272

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

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

C. Paperwork Reduction Act

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

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

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

D. Environmental Impact

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

E. Federalism Implications

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

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

F. Unfunded Mandates Reform Act of 1995

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

G. Energy Impact

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

H. Privacy Act Statement

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

List of Subjects in 49 CFR Part 213

    Penalties, Railroad safety, Reporting and recordkeeping
requirements.

The Final Rule

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

PART 213--[AMENDED]

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

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

Sec.  213.2  [Removed]

0
2. Remove Sec.  213.2.

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

Sec.  213.109  Crossties.

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

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

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

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

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

[GRAPHIC] [TIFF OMITTED] TR01AP11.046

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

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

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

Sec.  213.127  Rail fastening systems.

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

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

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

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

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

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