[Federal Register: August 26, 2010 (Volume 75, Number 165)]
[Proposed Rules]
[Page 52490-52503]
[DOCID:fr26au10-25]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

[Docket No. FRA-2009-0007, Notice No. 1]
RIN 2130-AC01

Track Safety Standards; Concrete Crossties

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing to amend the Federal Track Safety Standards
to promote the safety of railroad operations over track constructed
with concrete crossties. In particular, FRA is proposing specific
requirements for effective concrete crossties, for rail fastening
systems connected to concrete crossties, and for automated inspections
of track constructed with concrete crossties. In addition, FRA is
proposing to remove the provision on preemptive effect.

DATES: Written comments must be received by October 12, 2010. Comments
received after that date will be considered to the extent possible
without incurring additional delay or expense.
    FRA anticipates being able to resolve this rulemaking without a
public, oral hearing. However if FRA receives a specific request for a
public, oral hearing prior to September 27, 2010, one will be scheduled
and FRA will publish a supplemental notice in the Federal Register to
inform interested parties of the date, time, and location of any such
hearing.

ADDRESSES: Comments: Comments related to this Docket No. FRA-2009-0007,
Notice No. 1 may be submitted by any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.Regulations.gov. Follow the online instructions for submitting
comments.
     Mail: Docket Management Facility, U.S. Department of
Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington,
DC 20590-0001.
     Hand Delivery: Docket Management Facility, U.S. Department
of Transportation, West Building, Ground floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. ET,
Monday through Friday, except Federal holidays.
     Fax:<PHONE_NUMBER>.
    Instructions: All submissions must include the agency name and
docket

number or Regulatory Identification Number (RIN) for this rulemaking.
Please note that all comments received will be posted without change to
http://www.Regulations.gov, including any personal information
provided. Please see the discussion under the Privacy Act heading in
the SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.Regulations.gov at any time or
visit the Docket Management Facility, U.S. Department of
Transportation, West Building, Ground floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC between 9 a.m. and 5 p.m. ET, Monday
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: 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 20590 (telephone:<PHONE_NUMBER>).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Concrete Crossties
    A. Derailment in 2005 Near Home Valley, Washington
    B. General Factual Background on Concrete Crossties
    C. Statutory Mandate To Conduct 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 in This NPRM
    A. Rail Cant
    B. Automated Inspections
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Environmental Impact
    E. Federalism Implications
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Privacy Act Statement

I. Concrete Crossties

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 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 proposed rule
addresses this complex 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 noncompliant 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 fracture. 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).
    Although timber crossties are more prevalent throughout track in
the United States, 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 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 an 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 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. 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. 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 proposed
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
proposed 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).
    Regulations governing the use of concrete crossties currently
address only high-speed rail operations (Class 6 track and above).\5\
For track Classes 1-5 (the lower speed classes of track), concrete
crossties have 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, which this NPRM proposes to address. Also not addressed in
the current regulation is the longitudinal rail restraint provided by
concrete crossties, which is totally different than the restraint
provided by timber crossties. This NPRM addresses these shortcomings
and proposes 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 the agency's major stakeholders, including
railroads, labor organizations, suppliers and manufacturers, and other
interested parties. An alphabetical list of RSAC members follows:

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;
Amtrak;
Association of Railway Museums;
Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employees 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 package is presented to the full RSAC
for a vote. If the proposal is accepted by a simple majority of RSAC,
the proposal is formally recommended to FRA. FRA then determines what
action to take on the recommendation. Because FRA staff 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 goals, is soundly
supported, and is in accordance with policy and legal requirements.
Often, FRA varies in some respects from the RSAC recommendation in
developing the actual regulatory proposal or final rule. Any such
variations would be noted and explained in the rulemaking document
issued by FRA. If the working group or RSAC is unable to reach
consensus on recommendations for action, FRA moves ahead to resolve the
issue through traditional rulemaking proceedings.

III. RSAC Track Safety Standards Working Group

    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 (``RITF'') and
the Concrete Crosstie Task Force (``CCTF''). Principally in response to
NTSB recommendation R-06-19,\6\ the task statement description for the
CCTF was to consider improvements in the Track Safety Standards related
to fastening of rail to concrete crossties. The newly formed CCTF was
directed to 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 is the basis of
this 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.
    When appropriate, FRA assigns a task to RSAC, and after
consideration and debate, RSAC may accept or reject the task. If the
task is accepted, RSAC establishes a working group that possesses the
appropriate expertise and representation of interests to develop
recommendations to FRA for action on

the task. These recommendations are developed by consensus. A working
group may establish one or more task forces to develop facts and
options on a particular aspect of a given task. The task force then
provides that information to the working group for consideration. If a
working group comes to unanimous consensus on recommendations for
action, the package is presented to the full RSAC for a vote. If the
proposal is accepted by a simple majority of RSAC, the proposal is
formally recommended to FRA. FRA then determines what action to take on
the recommendation. Because FRA staff plays an active role at the
working group level in discussing the issues and options and in
drafting the language of the consensus proposal, FRA is often favorably
inclined toward the RSAC recommendation.
    However, FRA is in no way bound to follow the recommendation, and
the agency exercises its independent judgment on whether the
recommended rule achieves the agency's regulatory goal, is soundly
supported, and is in accordance with policy and legal requirements.
Often, FRA varies in some respects from the RSAC recommendation in
developing the actual regulatory proposal or final rule. Any such
variations would be noted and explained in the rulemaking document
issued by FRA. If the working group or RSAC is unable to reach
consensus on recommendations for action, FRA moves ahead to resolve the
issue through traditional rulemaking proceedings.
    FRA has worked closely with RSAC in developing its recommendations
and believes that the RSAC has effectively addressed concerns with
regard to the safety of concrete crossties. 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 NPRM. 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 proposed
rule.
    The Working Group was unable to reach consensus on one item that
FRA has elected to include in this NPRM. 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. Encouraging public comment on this
particular issue, FRA is proposing at 49 CFR 213.234(e) 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.

IV. FRA's Approach to Concrete Crossties in This NPRM

    In this NPRM, FRA is proposing standards for the maintenance of
concrete crossties in Classes 1 through 5 track. Specifically, FRA is
proposing requirements to establish limits for rail seat abrasion,
concrete crosstie pad wear limits, missing or broken rail fasteners,
loss of appropriate toeload pressure, improper faster configuration,
and excessive lateral rail movement. FRA is also proposing to add a
section requiring the automated inspection of track constructed with
concrete crossties.
    In developing this NPRM, FRA relied heavily upon the work of the
CCTF. The mission statement of the CCTF was 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.
    Currently, crossties are 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 free from excess moisture
presence 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 (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 FRA has decided to use the
term in the proposed rule. ``Rail cant deviation'' refers to the inward
or outward angle made by the rail when the rail seat pad material
deteriorates to a point that exposes the rail base to the concrete.
    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
(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. The CCTF therefore 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. FRA welcomes public comment regarding the
feasibility of technology as an alternative inspection standard or as
an additional inspection method for the discovery and remediation of
rail cant.
    FRA proposes the text that it initially presented to the CCTF at 49
CFR 213.234(e) and welcomes public comment regarding the issue of
measuring rail cant. FRA proposes 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 is not proposing to
mandate the use of a particular technology, rather 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).

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.
---------------------------------------------------------------------------

V. Section-by-Section Analysis

Section 213.2 Preemptive Effect

    FRA proposes to remove 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
proposed regulation's preemptive effect is duplicative of 49 U.S.C.
20106 and, therefore, unnecessary.

Section 213.109 Crossties

    FRA proposes to amend 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 proposing to revise 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). FRA is proposing to clarify that only nondefective
crossties may be counted to fulfill the requirements of the paragraph.
Nondefective crossties are defined in proposed paragraphs (c) and (d).
FRA is proposing to make other minor grammatical corrections to this
paragraph, including moving the table of minimum number of crossties
from paragraph (d) to proposed paragraph (b)(4).
    Paragraph (c). FRA is proposing to state that this paragraph is
specific to crossties other than concrete crossties.
    Paragraph (d). FRA is proposing to move the existing table of
minimum number of crossties from this paragraph, to proposed paragraph
(b)(4). FRA is proposing to substitute language that delineates the
requirements related to concrete crossties.
    Paragraph (d)(1). FRA is proposing that, as with non-concrete
crossties, concrete crossties counted to fulfill the requirements of
proposed 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 broken-out areas exposing
prestressed material. Currently, metal reinforcing bars are used as the
prestressing material in concrete crossties. FRA is proposing to use
the term ``prestressing material'' in lieu of ``metal reinforcing
bars'' to allow for future technological advances.
    Crosstie failure is exhibited in three distinct ways: Stress
induced (breaks, cracks); mechanical (abrasion); or chemical
decomposition. 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.
    There is distinction between ``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 bar in
a mold, then pouring cement concrete over the reinforcing bar in the
mold. After the concrete cures, the tension on the reinforcing bar is
released, and the ends of the reinforcing bar are trimmed, if
appropriate for the use. The reinforcing bar 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 bar is otherwise allowed
to come out of contact with the concrete, then the reinforcing bar is
no longer in tension, and 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 bar is no longer in tension, the prestressed concrete can
no longer withstand the tensile loads, and therefore a concrete
crosstie can structurally fail.
    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 noncompliance.
    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). FRA is proposing that crossties counted to
fulfill the requirements of proposed 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). FRA proposes to prescribe that crossties counted
to fulfill the requirements of proposed 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 was specifically added to address
Sec. 403(d)(6) of RSIA, which states that the Secretary may address
excessive lateral rail movement in the concrete crosstie regulations.
    Paragraph (d)(4). FRA is proposing that crossties counted to
fulfill the requirements of proposed 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. ``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 was specifically proposed to address Sec. 403(d)(1) of RSIA,
which states that the Secretary may address limits for rail seat
abrasion in the concrete crosstie regulations.
    Paragraph (d)(5). FRA is proposing that crossties counted to
fulfill the requirements of proposed 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 noncompliant 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 thermal
stress buildup. However, because of the unrestrained buildup of thermal
stresses, 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 use good judgment in determining fastener
assembly and crosstie effectiveness. This paragraph proposes to address
Sec. 403(d)(3) and (d)(4) of RSIA, which state

that the Secretary may address, in the concrete crosstie regulations,
missing or broken rail fasteners, and loss of appropriate toeload
pressure.
    Paragraph (d)(6). FRA is proposing that crossties counted to
fulfill the requirements of proposed paragraph (b)(4) of this section
must not be configured with less than two fasteners on the same rail
except as provided in proposed Sec.  213.127(c). FRA is proposing to
revise this section, discussed further below, to include requirements
specific to fasteners utilized in conjunction with concrete crossties.

Section 213.127 Rail Fastening Systems

    FRA is proposing to revise this section by designating its existing
text as paragraph (a) and adding new paragraphs (b) and (c).
    Paragraph (b). FRA is proposing in this paragraph that, if rail
anchors are applied to concrete crossties, 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). FRA is proposing that, where fastener placement
impedes insulated joints from performing as intended, the fastener may
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.
    FRA is requesting comment to provide stronger guidance regarding
how a concrete tie provides support to the rail at a joint without a
fastener present. The agency knows that this type of configuration is
successful in maintaining the structural integrity in the field, but is
interested in learning the quantifiable parameters of such a practice.

Section 213.234 Automated Inspection of Track Constructed With Concrete
Crossties

    FRA is proposing to add 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 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 with the human eye. 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 noncompliant 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.
    Rail seat deterioration can be very difficult and time consuming
for a track inspector to detect manually. Other than automated
inspection, there are currently no other tools capable of aiding in the
detection of rail seat deterioration. Automated inspection vehicles
have proved effective in measuring rail seat deterioration, and the
inspection vehicles can inspect much more rapidly and accurately than a
visual track inspection.
    Paragraph (a). FRA proposes that automated inspection technology
shall 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 proposing
that automated inspections identify and report concrete crosstie
deterioration or abrasion prohibited by proposed Sec.  213.109(d)(4).
The purpose of the automated inspection that would be required by this
new paragraph 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. FRA is proposing in Sec.
213.109(d)(4) 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.
    Paragraph (b). In this paragraph, FRA is proposing the frequencies
at which track constructed of concrete crossties shall be inspected by
automated means. FRA is proposing that an automated inspection be
conducted twice each calendar year, with no less than 160 days between
inspections, 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). FRA is proposing that an automated inspection
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
proposing 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. And finally, FRA proposes that track not inspected
in accordance with paragraph (b)(1) or (b)(2) of this section because
of train operation interruption 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 proposes that
the next scheduled inspection be an automated inspection as proposed in
this paragraph. FRA also requests comment on whether additional
inspections should be required in passenger territory with significant
freight tonnage and high track curvature and if so, how such
requirements might be structured to target areas of risk while holding
down costs.
    Paragraph (c). In this paragraph, FRA proposes to exclude 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). The Working Group was unable to come to consensus on
this item. However, FRA determined that it would propose elements of
the text that it presented to the Working Group. FRA proposes that the
automated inspection measurement system must be capable of measuring
and processing rail cant requirements which 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.
    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 normally measures 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 the 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 Sec. 403(d)(1) of RSIA, which states
that, in the concrete crosstie regulations, the Secretary may address
limits for rail seat abrasion. FRA specifically requests public comment
with regard to this item.
    Paragraph (e). FRA is proposing that 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 appropriate persons designated as fully qualified under Sec.
213.7 can field-verify each exception. It would continue to state that
each exception must 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
Track Safety Standards.
    Paragraph (f). FRA is proposing that the track owner maintain 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 record must include the date and location of limits of the
inspection, type and location of each exception, and the results of
field verification, and remedial action if required. The locations
required 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 proposal 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, to help FRA track
inspectors to gain access to and accurately assess the railroad's
compliance history.
    Paragraph (g). FRA is proposing 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 such that it is
accurate to within \1/8\ of an inch for rail seat deterioration.
    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.
    Paragraph (h). FRA is proposing that the track owner provide
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 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 aims 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 requests public
comment regarding the frequency at which such training should occur and
the period for which training records should be retained.

VI. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule has been evaluated in accordance with existing
policies and procedures and determined to be non-significant under both
Executive Order 12866 and DOT policies and procedures. See 44 FR 11034;
February 26, 1979. FRA has conducted and placed in the docket a
Regulatory Impact Analysis addressing the costs and benefits associated
with this NPRM. 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. FRA welcomes comments on this document.
    The concrete tie 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 proposed 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
NPRM. 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 proposed 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. 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 proposal. 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. Small
railroads were consulted during the RSAC Working Group deliberations,
and their interests have been taken into consideration in this NPRM.
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.
    FRA seeks comments on all aspects of this assessment and
certification.

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The 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. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning the following: Whether
these information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology,

may be minimized. For information or a copy of the paperwork package
submitted to OMB, contact Mr. Robert Brogan, Office of Railroad Safety,
Information Clearance Officer, at<PHONE_NUMBER>, or Ms. Kimberly Toone,
Office of Financial Management and Administration, Information
Clearance Officer, at<PHONE_NUMBER>.
    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also
be submitted via e-mail to Mr. Brogan or Ms. Toone at the following
address<EMAIL_ADDRESS><EMAIL_ADDRESS>    OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule and
associated information collection submission will respond to any OMB or
public comments on the information collection requirements contained in
this proposal.
    FRA is not authorized to impose a penalty on persons for violating
information collection requirements that do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the eventual
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 NPRM in accordance with its ``Procedures for
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545,
May 26, 1999) as required by the National Environmental Policy Act (42
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders,
and related regulatory requirements. FRA has determined that this
action is not a major FRA action (requiring the preparation of an
environmental impact statement or environmental assessment) because it
is categorically excluded from detailed environmental review pursuant
to section 4(c)(20) of FRA's Procedures. 64 FR 28547, May 26, 1999. In
accordance with section 4(c) and (e) of FRA's Procedures, the agency
has further concluded that no extraordinary circumstances exist with
respect to this NPRM that might trigger the need for a more detailed
environmental review. As a result, FRA finds that this NPRM 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 proposed rule in accordance with the
principles and criteria contained in Executive Order 13132. If adopted,
this proposed 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
proposed 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 proposed 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, if adopted, this proposed rule could have preemptive
effect by operation of law under 49 U.S.C. 20106 (Sec. 20106). Sec.
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
Sec. 20106.
    In sum, FRA has analyzed this proposed rule in accordance with the
principles and criteria contained in Executive Order 13132. As
explained above, FRA has determined that this proposed 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 proposed 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).'' Sec. 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 NPRM 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 NPRM in accordance with Executive Order 13211. FRA has determined
that this NPRM is not likely to have a significant adverse effect on
the supply, distribution, or use of energy. Consequently, FRA has
determined that this NPRM 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 Proposed Rule

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

PART 213--[AMENDED]

    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,
Public Law 110-432, 122 Stat. 4885; 28 U.S.C. 2461, note; and 49
CFR1.49.

Sec.  213.2  [Removed]

    2. Section 213.2, Preemptive effect, is removed.
    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 nondefective 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 and     Turnouts and
          FRA track class           curved track less     curved track
                                     than or equal to   greater than  2
                                        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 [frac12] inch or more;
    (5) Deteriorated such that the crosstie's fastening or anchoring
system 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:
    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] TP26AU10.000

    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] TP26AU10.001

    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] TP26AU10.002

    (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.
    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.
    5. 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, 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 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, which shall not exceed two
feet; and
    (3) Calibration procedures and parameters assigned to the system,
which assure that measured and recorded values accurately represent
rail cant.
    (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 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; and
    (3) Results of field verification, and 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 is accurate to within \1/8\ of an inch for
rail seat deterioration.
    (h) Training. The track owner shall provide 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 August 23, 2010.
Joseph C. Szabo,
Administrator.
[FR Doc. 2010-21301 Filed 8-25-10; 8:45 am]
BILLING CODE 4910-06-P