[Federal Register Volume 77, Number 203 (Friday, October 19, 2012)]
[Proposed Rules]
[Pages 64249-64272]
[FR Doc No: 2012-25620]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

[Docket No. FRA-2011-0058, Notice No. 1]
RIN 2130-AC28

Track Safety Standards; Improving Rail Integrity

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 by enhancing rail flaw
detection processes. In particular, FRA is proposing minimum
qualification requirements for rail flaw detection equipment operators,
as well as revisions to requirements for effective rail inspection
frequencies, rail flaw remedial actions, and rail inspection records.
In addition, FRA is proposing to remove regulatory requirements
concerning joint bar fracture reporting. This rulemaking is intended to
implement section 403 of the Rail Safety Improvement Act of 2008
(RSIA).

DATES: (1) Written comments must be received by December 18, 2012.
Comments received after that date will be considered to the extent
possible without incurring additional delay or expense.
    (2) 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 November 19, 2012, 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-2011-0058,
Notice No. 1 may be submitted by any of the following methods:
     Federal eRulemaking Portal: Go to 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 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 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: Carlo Patrick, Staff Director, Office
of Railroad Safety, FRA, 1200 New Jersey Avenue SE., Washington, DC
20590 (telephone:<PHONE_NUMBER>); or Elisabeth Galotto, 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. Executive Summary
II. Rail Integrity Overview
    A. Derailment in 2001 near Nodaway, Iowa
    B. Derailment in 2006 near New Brighton, Pennsylvania
    C. Office of Inspector General Report: Enhancing the Federal
Railroad Administration's Oversight of Track Safety Inspections,
February 24, 2009
    D. General Factual Background on Rail Integrity
    E. Statutory Mandate To Conduct this Rulemaking
III. Overview of FRA's Railroad Safety Advisory Committee (RSAC)
IV. RSAC Track Safety Standards Working Group
V. Track Inspection Time Study
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. Executive Summary

    The Track Safety Standards Working Group (Working Group) of FRA's
Railroad Safety Advisory Committee (RSAC) 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. The RITF was tasked to review the reuse of plug rail and the
requirements for internal rail flaw inspections. The RITF met 11 times
between November 2007 and April 2010. On September 23, 2010 and
December 14, 2010, and the RSAC voted to approve the Working Group's
recommended text and adopt it as their recommendation to FRA. The RSAC
recommendation formed the basis of this NPRM.
    This NPRM proposes requirements related to the following subject
areas: defective rails, the inspection of rail, qualified operators,
and inspection records. The NPRM also addresses the mandate of section
403 of the Rail Safety Improvement Act of 2008, and removes the joint
bar fracture report requirement. The following is a brief overview of
the proposal organized by the subject area:
     Defective Rails
    FRA is proposing to provide railroads with a four-hour period in
which to verify that a suspected defect exists in the rail section. The
primary purpose of the four-hour deferred-verification option is to
assist the railroads in improving detector car utilization and
production, increase the opportunity to detect larger defects, and
ensure that all of the rail the detector car travels over while in
service is inspected. Additionally, FRA proposes revisions to the
remedial action table in areas such as transverse defects, longitudinal
weld defects, and crushed head defects.

 Inspection of Rail

    Currently, Class 4 and 5 track, as well as Class 3 track over which
passenger trains operate, are required to be tested for internal rail
defects at least once every accumulation of 40 million gross tons (mgt)
or once a year (whichever time is shorter). Class 3 track over which
passenger trains do not operate are required to be tested at least once
every accumulation of 30 mgt or once per year (whichever time is
longer). When this standard was drafted, railroads were already
initiating and implementing the development of a performance-based risk
management concept for determination of rail inspection frequency that
is often referred to as the ``self-adaptive scheduling method.'' Under
this method, inspection frequency is established based annually on
several factors, including the total detected defect rate per test, the
rate of service failures between tests, and the accumulated tonnage
between tests. The railroads then utilize this information to generate
and maintain a service failure performance target.
    The proposed changes in this NPRM seek to codify standard industry
good practices. The NPRM proposes to require railroads to maintain
service failure rates of no more than 0.1 service failure per year per
mile of track for all Class 4 and 5 track; no more than 0.09 service
failure per year per mile of track for all Class 3, 4, and 5 track that
carries regularly-scheduled passenger trains or is a hazardous material
route; and no more than 0.08 service failure per year per mile of track
for all Class 3, 4, and 5 track that carries regularly-scheduled
passenger trains and is a hazardous material route.
    The NPRM also proposes that internal rail inspections on Class 4
and 5 track, or Class 3 track with regularly-scheduled passenger trains
or that is a hazardous materials route, not exceed a time interval of
370 days between inspections or a tonnage interval of 30 million gross
tons (mgt) between inspections, whichever is shorter. Internal rail
inspections on Class 3 track without regularly-scheduled passenger
trains and that is not a hazardous materials route must be inspected at
least once each calendar year, with no more than 18 months between
inspections, or at least once every 30 mgt, whichever interval is
longer, with the additional provision that inspections cannot be more
than 5 years apart.

 Qualified Operators

    FRA proposes to add a new provision requiring that each provider of
rail flaw detection have a documented training program to ensure that a
flaw detection equipment operator is qualified to operate each of the
various types of equipment currently utilized in the industry for which
he or she is assigned to operate.

 Removing the Requirement of a Joint Bar Fracture Report

    This NPRM proposes removing the requirement that railroads generate
a Joint Bar Fracture Report (Fracture Report) for every cracked or
broken continuous welded rail (CWR) joint bar that the track owner
discovers during the course of an inspection. The RSAC Working Group
ultimately determined that the reports were providing little useful
research data to prevent future failures of CWR joint bars. Instead,
the Group recommended that a new study be conducted to determine what
conditions lead to CWR joint bar failures and include a description of
the overall condition of the track in the vicinity of the failed
joint(s); photographic evidence of the failed joint, track geometry
(gage, alignment, profile, cross-level) at the joint location; and the
maintenance history at the joint location.

 Inspection Records

    FRA proposes to require that the railroad's rail inspection records
include the date of inspection, track identification and milepost for
each location tested, type of defect found and size if not removed
prior to traffic, and initial remedial action as required by Sec.
213.113. FRA also proposes that all tracks that do not receive a valid

inspection are documented in the railroad rail inspection records.

 Section 403 of the RSIA

    On October 16, 2008, the RSIA (Pub. L. 110-432, Division A) was
enacted. Section 403(a) of the RSIA required the Secretary to conduct a
study of track issues, known as the Track Inspection Time Study
(Study). The Study was to determine whether track inspection intervals
needed to be amended; whether track remedial action requirements needed
to be amended; whether different track inspection and repair priorities
and methods were required; and whether the speed of track inspection
vehicles should be regulated. As part of the study, section 403(b)
instructed the Secretary to consider ``the most current rail flaw, rail
defect growth, rail fatigue, and other relevant track- or rail-related
research and studies,'' as well as new inspection technologies, and
National Transportation Safety Board (NTSB) and FRA accident
information. The study was completed and presented to Congress on May
2, 2011. Section 403(c) of the RSIA further provides that FRA prescribe
regulations based on the results of the Study two years after its
completion.
    On August 16, 2011, RSAC accepted RSAC task 11-02, which was
generated in response to the RSIA and to address the recommendations of
the Study. After several meetings, the Association of American
Railroads (AAR) together with the Brotherhood of Maintenance of Way
Employes Division (BMWED) stated that FRA had met its obligations under
section 403(c) of the RSIA through its rulemakings on vehicle/track
interaction (VTI), concrete crossties, and the proposals contained in
this NPRM related to rail integrity. They also stated that additional
action on RSAC task 11-02 was unnecessary and recommended that the task
should be closed. FRA took the proposal under advisement after the
February meeting and conducted its own analysis as to the fulfillment
of the mandates under section 403. FRA concluded that these statutory
obligations were being fulfilled and on April 13, 2012, the Working
Group approved a proposal to conclude RSAC task 11-02. On April 26,
2012, the RSAC concluded that FRA's recent and ongoing rulemakings were
sufficiently addressing the statutorily-mandated topics and that no
additional work by the RSAC was necessary. Thus, the full RSAC approved
the proposal and closed RSAC task 11-02.

 Economic Impact

    The bulk of the proposed regulation revises FRA's Track Safety
Standards by codifying current industry good practices. In analyzing
the economic impacts of the proposed rule, FRA does not believe that
any existing operation will be adversely affected by these changes, nor
does FRA believe that the changes will induce any costs.
    Through its regulatory evaluation, FRA has explained what the
likely benefits for this proposed rule would be, and has provided a
cost-benefit analysis. FRA anticipates that this rulemaking would
enhance the current Track Safety Standards by allocating more time to
rail inspections, increasing the opportunity to detect larger defects
sooner, providing assurance that qualified operators are inspecting the
rail, and causing inspection records to be updated with more useful
information. The main benefit associated with this proposed rule is
derived from granting the railroads a four-hour window to verify some
defects found in a rail inspection. Without the additional time to
verify a defect, railroads currently must stop their inspection anytime
a suspect defect is identified, and then resume their inspection after
the defect is verified. The defects subject to the proposed deferred
verification allowance are usually considered less likely to cause
immediate rail failure, and require less restrictive remedial action.
The additional time permits railroads to avoid the cost of paying their
internal inspection crews or renting a rail car flaw detector an
additional half day, saving the industry $8,400 per day. FRA believes
the value of the anticipated benefits would easily justify the cost of
implementing the rule as proposed.

       Table E1--Total Discounted Net Benefits for 20-Year Period
------------------------------------------------------------------------
                                                  Discount factor
                                         -------------------------------
                                             7 percent       3 percent
------------------------------------------------------------------------
Four Hour Inspection Window.............     $34,754,935     $46,982,768
Net Benefit.............................      34,754,935      46,982,768
------------------------------------------------------------------------

    The rule's total net benefits are estimated to be about $61.3
million over a 20-year period. The benefits are approximately $47.0
million discounted at a 3 percent rate, or about $34.8 million,
discounted at a 7 percent rate. FRA believes that such improvements
would more than likely result from the adoption of the proposed rule by
the railroad industry.

 II. Rail Integrity Overview

A. Derailment in 2001 Near Nodaway, Iowa

    On March 17, 2001, the California Zephyr, a National Railroad
Passenger Corporation (Amtrak) passenger train carrying 257 passengers
and crew members, derailed near Nodaway, Iowa. According to the NTSB,
sixteen cars decoupled from the two locomotives and eleven cars went
off the rails. Seventy-eight people were injured and one person died
from the accident. See NTSB/RAB-02-01.
    The NTSB discovered a broken rail at the point of derailment. The
broken pieces of rail were reassembled at the scene, and it was
determined that they came from a 15\1/2\-foot section of rail that had
been installed as replacement rail, or ``plug rail,'' at this location
in February, 2001. The replacement had been made because, during a
routine scan of the existing rail on February 13, 2001, the Burlington
Northern and Santa Fe Railway (now BNSF Railway Company or BNSF)
discovered internal defects that could possibly hinder the rail's
effectiveness. A short section of the continuous welded rail that
contained the defects was removed, and a piece of replacement rail was
inserted. However, the plug rail did not receive an ultrasonic
inspection before or after installation.
    During the course of the accident investigation, the NTSB could not
reliably determine the source of the plug rail. While differing
accounts were given concerning the origin of the rail prior to its
installation in the track, the replacement rail would most likely have
been rail which was removed from another track location for reuse.
Analysis of the rail found that the rail failed due to fatigue
initiating from cracks associated with the precipitation of internal
hydrogen. If the rail had been ultrasonically inspected prior to its
reuse, it is likely that the defects could have been identified and
that section of rail might not have been used as plug rail.
    As a result of its investigation of the Nodaway, Iowa, railroad
accident, the NTSB recommended that FRA require railroads to conduct
ultrasonic or other appropriate inspections to ensure that rail used to
replace defective segments of existing rail is free from internal
defects. See NTSB Recommendation--02-5.

B. Derailment in 2006 Near New Brighton, Pennsylvania

    On October 20, 2006, Norfolk Southern Railway Company (NS) train
68QB119 derailed while crossing the Beaver River railroad bridge in New
Brighton, Pennsylvania. The train was pulling eighty-three tank cars
loaded with denatured ethanol, a flammable liquid. Twenty-three of the
tank cars derailed near the east end of the bridge, causing several of
the cars to fall into the Beaver River. Twenty of the derailed cars
released their loads of ethanol, which subsequently ignited and burned
for forty-eight hours. Some of the unburned ethanol liquid was released
into the river and the surrounding soil. Homes and businesses within a
seven-block area of New Brighton and in an area adjacent to the
accident had to be evacuated for days. While no injuries or fatalities
resulted from the accident, NS estimated economic and environmental
damages to be $5.8 million. See NTSB/RAB-08-9 through 12.
    The NTSB determined that the probable cause of the derailment was
an undetected internal rail defect identified to be a detail fracture.
The NTSB also noted that insufficient regulation regarding internal
rail inspection may have contributed to the accident.
    This accident demonstrates the potential for rail failure with
subsequent derailment if a railroad's internal rail defect detection
process fails to detect an internal rail flaw. This accident also
indicates a need for adequate requirements that will ensure rail
inspection and maintenance programs identify and remove rail with
internal defects before they reach critical size and result in
catastrophic rail failures.

C. Office of Inspector General Report: Enhancing the Federal Railroad
Administration's Oversight of Track Safety Inspections

    On February 24, 2009, the Office of Inspector General (OIG) for the
Department of Transportation (DOT) issued a report presenting the
results of its audit of FRA's oversight of track-related safety issues.
The report made two findings. First, the OIG found that FRA's safety
regulations for internal rail flaw testing did not require the
railroads to report the specific track locations, such as milepost
numbers or track miles that were tested during these types of
inspections. Second, the OIG found that FRA's inspection data systems
did not provide adequate information for determining the extent to
which FRA's track inspectors have reviewed the railroads' records for
internal rail flaw testing and visual track inspections to assess
compliance with safety regulations. The OIG recommended that FRA revise
its track safety regulations for internal rail flaw testing to require
railroads to report track locations covered during internal rail flaw
testing, and that FRA develop specific inspection activity codes for
FRA inspectors to use to report on whether the record reviews FRA
inspectors conduct were for internal rail flaw testing or visual track
inspections. Enhancing the Federal Railroad Administration's Oversight
of Track Safety Inspections, Department of Transportation, Office of
Inspector General, CR-2009-038, February 24, 2009.

D. General Factual Background on Rail Integrity \1\
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    \1\ This section is primarily based on information from two
sources: Progress in Rail Integrity Research, DOT/FRA/Ord-01/18, D.
Jeong 2001; and I. H. H. A. Guidelines to Best Practices for Heavy
Haul Railway Operations; Infrastructure Construction and Maintenance
Issues, Section 4.3.1 Rail Defect Detection and Technologies, Carlo
M. Patrick, R. Mark Havira, Gregory A. Garcia, Library of Congress
Control No.<PHONE_NUMBER>, 2009.
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    The single most important asset to the railroad industry is its
rail infrastructure, and historically the primary concern of the
railroad companies is the probability of rail flaw development, broken
rails, and subsequent derailments. This has resulted in railroads
improving their rail maintenance practices, purchasing more wear-
resistant rail, improving flaw-detection technologies, and increasing
rail inspection frequencies in an effort to prevent rail defect
development. The direct cost of an undetected rail failure is the
difference between the cost of replacing the rail failure on an
emergency basis, and the cost of the organized replacement of detected
defects. However, a rail defect that goes undetected and results in a
train derailment can cause considerable additional costs such as
excessive service interruption, extensive traffic rerouting,
environmental damage, and potential injury and loss of life.
    To maximize the life of rail, railroads must accept a certain rate
of defect development. This results in the railroad relying on regular
rail inspection cycles, and strategically renewing rail that is
obviously showing evidence of fatigue. The development of internal rail
defects is an inevitable consequence of the accumulation and effects of
fatigue under repeated loading. The challenge for the railroad industry
is to avoid the occurrence of rail service failure due to the presence
of an undetected defect. Rail service failures are expensive to repair
and can lead to costly service disruptions and possibly derailments.
    The effectiveness of a rail inspection program depends on the test
equipment being properly designed and capable of reliably detecting
rail defects of a certain size and orientation, while also ensuring
that the test frequencies correspond to the growth rate of critical
defects. The objective of a rail inspection program is to reduce the
annual costs resulting from broken rails, which involve several
variables.
    The predominant factor that determines the risk of rail failure is
the rate of development of internal flaws. Internal rail flaws have a
period of origin and a period often referred to as slow crack growth
life. The risk is introduced when internal flaws remain undetected
during their growth to a critical size. This occurs when the period
between when the crack develops to a detectable size is significantly
shorter than the required test interval.
    In practice, the growth rate of rail defects is considered highly
inconsistent and unpredictable. Rail flaw detection in conjunction with
railroad operations often presents some specific problems. This is a
result of high traffic volumes that load the rail and accelerate defect
growth, while at the same time decreasing the time available for rail
inspection. Excessive wheel loading can result in stresses to the rail
that can increase defect growth rates. Consequently, heavy axle loading
can lead to rail surface fatigue that may prevent detection of an
underlying rail flaw by the test equipment. Most railroads attempt to
control risk by monitoring test reliability through an evaluation
process of fatigue service failures that occur soon after testing, and
by comparing the ratio of service failures or broken rails to detected
rail defects.
    The tonnage required to influence defect development is also
considered difficult to predict; however, once initiated, transverse
defect development is influenced by tonnage. Rapid growth rates can
also be associated with rail where high-tensile residual stresses are
present in the railhead and in CWR in lower temperature ranges where
the rail is in high longitudinal tension.
    It is common for railroads to control risk by monitoring the
occurrence of both detected and service defects. For U.S. railroads,
risk is typically evaluated to warrant adjustment of test frequencies.
The railroads attempt to control the potential of service failure by
testing more frequently.

    In general, the approach in conducting rail integrity research is
focused to confirm whether rail defects can be detected by periodic
inspection before they grow large enough to cause a rail failure. In
the context of rails, damage tolerance is the capability of the rail to
resist failure and continue to operate safely with damage (i.e., rail
defects). This implies that a rail containing a crack or defect is
weaker than a normal rail, and that the rail's strength decreases as
the defect grows. As growth continues, the applied stresses will
eventually exceed the rail's strength and cause a failure. Such
information can be used to establish guidelines for determining the
appropriate frequency of rail inspections to mitigate the risk of rail
failure from undetected defects.
    Current detection methods that are performed in the railroad
industry utilize various types of processes with human involvement in
the interpretation of the test data. These include the:
     Portable test process, which consists of an operator
pushing a test device over the rail at a walking pace while visually
interpreting the test data;
     Start/stop process, where a vehicle-based flaw detection
system tests at a slow speed (normally not exceeding 20 mph) gathering
data that is presented to the operator on a test monitor for
interpretation;
     Chase car process, which consists of a lead test vehicle
performing the flaw detection process in advance of a verification
chase car; and
     Continuous test process, which consists of operating a
high-speed, vehicle-based test system non-stop along a designated
route, analyzing the test data at a centralized location, and
subsequently verifying suspect defect locations.
    The main technologies utilized for non-destructive testing on U.S.
railroads are the ultrasonic and induction methods. Ultrasonic
technology is the primary technology used, and induction technology is
currently used as a complimentary system. As with any non-destructive
test method, these technologies are susceptible to physical limitations
that allow poor rail head surface conditions to negatively influence
the detection of rail flaws. The predominant types of these poor rail
head surface conditions are shells, engine driver burns, spalling,
flaking, corrugation, and head checking. Other conditions that are
encountered include heavy lubrication or debris on the rail head.
    Induction testing requires the introduction of a high-level, direct
current into the top of the rail and establishing a magnetic field
around the rail head. An induction sensor unit is then passed through
the magnetic field. The presence of a rail flaw will result in a
distortion of the current flow, and it is this distortion of the
magnetic field that is detected by the search unit.
    Ultrasonics can be briefly described as sound waves, or vibrations,
that propagate at a frequency that is above the range of human hearing,
normally above a range of 20,000 Hz, or cycles per second. The range
normally utilized during current flaw detection operations is 2.25 MHz
(million cycles per second) to 5.0 MHz. Ultrasonic waves are generated
into the rail by piezo-electric transducers that can be placed at
various angles with respect to the rail surface. The ultrasonic waves
produced by these transducers normally scan the entire rail head and
web, as well as the portion of the base directly beneath the web.
Internal rail defects represent a discontinuity in the steel material
that constitutes the rail. This discontinuity acts as a reflector to
the ultrasonic waves, resulting in a portion of the wave being
reflected back to the respective transducer. These conditions include
rail head surface conditions, internal or visible rail flaws, weld
upset/finish, or known reflectors within the rail geometry such as
drillings or rail ends. The information is then processed by the test
system and recorded in the permanent test data record. Interpretation
of the reflected signal is the responsibility of the test system
operator.
    Railroads have always inspected track visually to detect rail
failures, and have been using crack-detection devices in rail-test
vehicles since the 1930s. Meanwhile, trends in the railroad industry
have been to increase traffic density and average axle loads. Current
rail integrity research recognizes and addresses the need to review and
update rail inspection strategies and subsequent preventive measures.
This would include the frequency interval of rail inspection, remedial
action for identified rail defects, and improvements to the performance
of the detection process.
    FRA has sponsored research related to railroad safety for several
decades. One part of this research program is focused on rail
integrity. The general objectives of FRA rail integrity research have
been to improve railroad safety by reducing rail failures and the
associated risks of train derailment, and to do so more efficiently
through new maintenance practices that increase rail service life.
Brief descriptions of the studies conducted by FRA focus on four
different areas: Analysis of rail defects; residual stresses in rail;
strategies for rail testing; and other areas related to rail integrity,
which include advances in nondestructive inspection techniques and
feasibility of advanced materials for rail, rail lubrication, rail
grinding, and wear. Moreover, rail integrity research is an ongoing
effort, and will continue as annual tonnages and average axle loads
increase on the nation's railroads.
    Due to the limitations of current technology to detect internal
flaws beneath surface conditions and in the base flange area, FRA's
research has been focusing on other rail flaw detection technologies.
One laser-based ultrasonic rail defect detection prototype, which is
being developed by the University of California-San Diego under an FRA
Office of Research and Development grant, has produced encouraging
results in ongoing field testing. The project goal is to develop a rail
defect detection system that provides better defect detection
reliability and a higher inspection speed than is currently achievable.
The primary target is the detection of transverse defects in the rail
head. The method is based on ultrasonic guided waves, which can travel
below surface discontinuities, hence minimizing the masking effect of
transverse cracks by surface shelling. The inspection speed can be
improved greatly also because guided waves run long distances before
attenuating.
    Non-destructive test systems perform optimally on perfect test
specimens. However, rail in track is affected by repeated wheel loading
that results in the plastic deformation of the rail running surface
that can create undesirable surface conditions as described previously.
These conditions can influence the development of rail flaws. These
conditions can also affect the technologies currently utilized for flaw
detection by limiting their detection capabilities. Therefore, it is
important that emerging technology development continue, in an effort
to alleviate the impact of adverse rail surface conditions.

E. Statutory Mandate To Conduct This Rulemaking

    The first Federal Track Safety Standards (Standards) were published
on October 20, 1971, following the enactment of the Federal Railroad
Safety Act of 1970, Public Law 91-458, 84 Stat. 971 (October 16, 1970),
in which Congress granted to FRA comprehensive authority over ``all
areas of railroad safety.'' See 36 FR 20336. FRA envisioned the new
Standards to be an evolving set of safety requirements

subject to continuous revision allowing the regulations to keep pace
with industry innovations and agency research and development. The most
comprehensive revision of the Standards resulted from the Rail Safety
Enforcement and Review Act of 1992, Public Law 102-365, 106 Stat. 972
(Sept. 3, 1992), later amended by the Federal Railroad Safety
Authorization Act of 1994, Public Law 103-440, 108 Stat. 4615 (Nov. 2,
1994). The amended statute is codified at 49 U.S.C. 20142 and required
the Secretary of Transportation (Secretary) to review and then revise
the Standards, which are contained in 49 CFR part 213. The Secretary
has delegated such statutory responsibilities to the Administrator of
FRA. See 49 CFR 1.49. FRA carried out this review on behalf of the
Secretary, which resulted in FRA issuing a final rule amending the
Standards in 1998. See 63 FR 34029, June 22, 1998; 63 FR 54078, Oct. 8,
1998.
    Pursuant to 49 U.S.C. 20103, the Secretary may prescribe
regulations as necessary in any area of railroad safety. As described
in the next section, FRA began its examination of rail integrity issues
through RSAC on October 27, 2007. Then, on October 16, 2008, the RSIA
was enacted. As previously noted, section 403(a) of the RSIA required
the Secretary to conduct a study of track issues known as the Track
Inspection Time Study (Study). In doing so, section 403(b) required the
Secretary to consider ``the most current rail flaw, rail defect growth,
rail fatigue, and other relevant track- or rail-related research and
studies'' as part of the Study. The Study was completed and submitted
to Congress on May 2, 2011. Section 403(c) also required the Secretary
to promulgate regulations based on the results of the study. As
delegated by the Secretary, see 49 CFR 1.49, FRA utilized its advisory
committee, RSAC and its Rail Integrity Task Force, to help develop the
information necessary to fulfill the RSIA's mandates in this area.
    FRA notes that section 403 of the RSIA contains one additional
mandate, which FRA has already fulfilled, promulgating regulations for
concrete crossties. On April 1, 2011, FRA published a final rule on
concrete crosstie regulations per this mandate in section 403(d). That
final rule specifies requirements for effective concrete crossties, for
rail fastening systems connected to concrete crossties, and for
automated inspections of track constructed with concrete crossties. See
76 FR 18073. FRA received two petitions for reconsideration in response
to that final rule, and responded to them by final rule published on
September 9, 2011. See 76 FR 55819.

III. 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
(AASHTO);
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);
BMWED;
Brotherhood of Locomotive Engineers and Trainmen (BLET);
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 a 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. However, to the
maximum extent practicable, FRA utilizes RSAC to provide consensus
recommendations with respect to both proposed and final agency action.
If RSAC is unable to reach consensus on a recommendation for action,
the task is withdrawn and FRA determines the best course of action.

IV. 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. Principally in response to NTSB recommendation R-
02-05,\2\ the task statement description for the RITF was to review the
controls applied to the reuse of plug rail and ensure a common
understanding within the regulated community concerning requirements
for internal rail flaw inspections.
---------------------------------------------------------------------------

    \2\ After the accident in Nodaway, the NTSB recommended that FRA
``[r]equire railroads to conduct ultrasonic or other appropriate
inspections to ensure that rail used to replace defective segments
of existing rail is free from internal defects.'' NTSB Safety
Recommendation R-02-5, dated March 5, 2002.
---------------------------------------------------------------------------

    However, after the New Brighton accident, and in response to NTSB
recommendations R-08-9, R-8-10, and R-08-11,\3\ the RITF was given a
second task on September 10, 2008, which directed the group to do the
following: (1) Evaluate factors that can and should be included in
determining the frequency of internal rail flaw testing and develop a
methodology for taking those factors into consideration with respect to
mandatory testing intervals; (2) determine whether the quality and
consistency of internal rail flaw testing can be improved and how; (3)
determine whether adjustments to current remedial action criteria are
warranted; and (4) evaluate the effect of rail head wear, surface
conditions and other relevant factors on the acquisition and
interpretation of internal rail flaw test results.
---------------------------------------------------------------------------

    \3\ After the New Brighton accident, the NTSB issued three
additional safety recommendations dated May 22, 2008: (1) FRA should
``[r]eview all railroads' internal rail defect detection and require
changes to those procedures as necessary to eliminate exception to
the requirement for an uninterrupted, continuous search for rail
defects.'' R-08-9; (2) FRA should ``[r]equire railroads to develop
rail inspection and maintenance programs based on damage-tolerance
principles, and approve those programs. Include in the requirement
that railroads demonstrate how their programs will identify and
remove internal defects before they reach critical size and result
in catastrophic rail failures. Each program should take into
account, at a minimum, accumulated tonnage, track geometry, rail
surface conditions, rail head wear, rail steel specifications, track
support, residual stresses in the rail, rail defect growth rates,
and temperature differentials.'' R-08-10; and (3) FRA should
``[r]equire that railroads use methods that accurately measure rail
head wear to ensure that deformation of the head does not affect the
accuracy of the measurements.'' R-08-11.
---------------------------------------------------------------------------

    The RITF met on November 28-29, 2007; February 13-14, 2008; April
15-16, 2008; July 8-9, 2008; September 16-17, 2008; February 3-4, 2009;
June 16-17, 2009; October 29-30, 2009; January 20-21, 2010; March 9-11,
2010; and April 20, 2010. The RITF's findings were reported to the
Working Group for approval on July 28-30, 2010. The Working Group
reached a consensus on the majority of the RITF's work and forwarded
proposals to the full RSAC on September 23, 2010 and December 14, 2010.
The RSAC voted to approve the Working Group's recommended text, which
provided the basis for this NPRM.
    In addition to FRA staff, the members of the Working Group include
the following:
     AAR, including the Transportation Technology Center, Inc.,
and members from BNSF, Canadian National Railway (CN), Canadian Pacific
Railway (CP), CSX Transportation, Inc., The Kansas City Southern
Railway Company (KCS), NS, and Union Pacific Railroad Company (UP);
     Amtrak;
     APTA, including members from Northeast Illinois Regional
Commuter Railroad Corporation (Metra), Long Island Rail Road (LIRR),
and Southeastern Pennsylvania Transportation Authority (SEPTA);
     ASLRRA (representing short line and regional railroads);
     BLET;
     BMWED;
     BRS;
     John A. Volpe National Transportation Systems Center
(Volpe Center)
     NTSB; and
     UTU.
    FRA worked closely with RSAC in developing its recommendations and
believes that RSAC has effectively addressed rail inspection safety
issues regarding the frequency of inspection, rail defects, remedial
action, and operator qualification. 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 set forth in
this NPRM. FRA believes that the expertise possessed by RSAC
representatives enhances the value of the recommendations, and FRA has
made every effort to incorporate them in this proposed rule.
    Nevertheless, 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 the definition of ``segment''
length, which FRA proposes to be utilized in a new performance-based
test frequency determination in Sec.  213.237, ``Inspection of Rail,''
as discussed below.

V. Track Inspection Time Study

    As noted previously, section 403(a) of the RSIA required the
Secretary to conduct a study of track issues. The Study was to
determine whether track inspection intervals needed to be amended;
whether track remedial action requirements needed to be amended;
whether different track inspection and repair priorities and methods
were required; and whether the speed of track inspection vehicles
should be more specifically regulated. In conducting the Study, section
403(b) instructed the Secretary to consider ``the most current rail
flaw, rail defect growth, rail fatigue, and other relevant track- or
rail-related research and studies,'' as well as new inspection
technologies, and NTSB and FRA accident information. The Study was
completed and presented to Congress on May 2, 2011. Section 403(c)
further provided that FRA prescribe regulations based on the results of
the Study two years after its completion.
    On August 16, 2011, RSAC accepted task 11-02, which was generated
in response to the RSIA and to address the recommendations of the
Study. Specifically, the purpose of the task was ``[t]o consider
specific improvements to the Track Safety Standards or other responsive
actions to the Track Inspection Time Study required by Sec.  403 (a)
through (c) of the RSIA and other relevant studies and resources.'' The
first meeting of the Working Group assigned to the task occurred on
October 20, 2011, and a second meeting was held on December 20, 2011.
At the third meeting on February 7-8, 2012, the AAR together with the
BMWED stated that FRA had met its obligations under section 403(c) of
the RSIA through its rulemakings on vehicle/track interaction (VTI),
concrete crossties, and the proposals contained in this NPRM on rail
integrity. They also stated that additional action on RSAC task 11-02
was unnecessary and recommended that the task should be closed. FRA
took the proposal under advisement after the February meeting and
conducted its own analysis as to the fulfillment of the mandates under
section 403. FRA concluded that these statutory obligations were being
fulfilled and on April 13, 2012, the Working Group approved a proposal
to conclude RSAC task 11-02. On April 26, 2012, the full RSAC approved
the proposal and closed RSAC task 11-02. The recommendation approved by
the full RSAC is described below.
    In determining whether regulations were necessary based on the
results of the Study, RSAC examined the Study's four issues for
improving the track inspection process:
     Expanding the use of automated inspections;
     Developing additional training requirements for track
inspectors;

     Considering a maximum inspection speed for track
inspection vehicles; and
     Influencing safety culture through a safety reporting
system.
    The Study's first recommendation was that FRA consider expanding
the use of automated inspections to improve inspection effectiveness.
Specifically, the Study cited two specific track defects that are more
difficult to detect through visual track inspection and could benefit
from the use of automated inspection: rail seat abrasion (RSA) and
torch cut bolt holes. Through discussion among the affected parties, it
was determined that these areas of concern already had been covered
under previous rulemaking and regulations. The Concrete Crossties final
rule published on April 1, 2011, new Sec.  213.234, ``Automated
inspection of track constructed with concrete crossties,'' specifically
employs the use of automated inspection ``to measure for rail seat
deterioration.'' In addition, torch cut bolt holes have been prohibited
on track classes 2 and above since 1999, which was codified in
Sec. Sec.  213.121(g) and 213.351(f), and they are easily identifiable
through the rail flaw detection technology currently in use. Thus, the
RSAC concluded that additional regulations to find such defects would
be unnecessary.
    Outside of these two specific defects, the RSAC concluded that the
instant NPRM would also be revising automated inspection standards in
other areas, such as ultrasonic testing. For example, this NPRM
proposes changing the ultrasonic testing of rail from a standard based
on time and tonnage to one based on self-adaptive performance goals.
Thus, the full RSAC concluded that the use of automated inspection has
been sufficiently expanded in the areas that are most ideally suited
for development at this point. While FRA and RSAC noted that they may
wish to make changes to the automated inspection standards in the
future, FRA and RSAC nevertheless maintained that the changes stated
above sufficiently satisfy the RSIA's mandate.
    However, RSAC concurred with FRA, BMWED and AAR that it was
important to ensure that any type of report generated from the
automated inspection of track, regardless of whether it is mandated by
regulation or voluntarily utilized by a railroad, be made available to
track inspectors. Therefore, in this NPRM, FRA is issuing policy
guidance to encourage track owners and railroads to provide the
information from their automated track inspections in a usable format
to those persons designated as fully qualified under the Track Safety
Standards and assigned to inspect or repair the track over which an
automated inspection is made. This guidance is as follows:

    When automated track inspection methods are used by the track
owner, FRA recommends that the information from that inspection be
provided or made readily available to those persons designated as
fully qualified under CFR 213.7 and assigned to inspect or repair
the track over which the automated inspection was made.

    The second recommendation the Study addressed was whether FRA
should develop additional training requirements for track inspectors.
RSAC found that it was unnecessary to generate additional training
standards under RSAC task 11-02 for two reasons. First, the instant
NPRM proposes to create a new Sec.  213.238 to address an area of
training that requires new standards. Proposed Sec.  213.238 defines a
qualified operator of rail flaw detection equipment and requires that
each provider of rail flaw detection service have a documented training
program to ensure that a rail flaw detection equipment operator is
qualified to operate each of the various types of equipment currently
utilized in the industry for which he or she is assigned, and that
proper training is provided in the use of newly-developed technologies.
Second, the recently published NPRM on Training, Qualification, and
Oversight for Safety-Related Railroad Employees, 77 FR 6412 (proposed
Feb. 7, 2012) (to be codified at 49 CFR parts 214, 232, and 243),
proposes to require that employers develop and submit for FRA review a
program detailing how they will train their track inspectors. As
proposed in the NPRM, employees charged with the inspection of track or
railroad equipment are considered safety-related railroad employees
that each employer must train and qualify. The proposed formal training
for employees responsible for inspecting track and railroad equipment
is expected to cover all aspects of their duties related to complying
with the Federal standards. FRA would expect that the training programs
and courses for such employees would include techniques for identifying
defective conditions and would address what sort of immediate remedial
actions need to be initiated to correct critical safety defects that
are known to contribute to derailments, accidents, incidents, or
injuries. Id., at 6415. The RSAC found that new requirements for the
training of track inspectors were being adequately addressed by this
proposed NPRM on employee training standards, and thus did not believe
additional action was currently necessary in this area.
    The third recommendation of the Study addressed whether track hi-
rail inspection speed should be specified. The Study concluded that
specifying limits to hi-rail inspection speeds could be
``counterproductive.'' With the currently-available data in this area,
the RSAC concurred with the Study's recommendation, and determined that
no further action needed to be taken in this area at this time. The
RSAC found that the existing reliance on the ``inspector's discretion''
as noted in Sec.  213.233, should generally govern track inspection
speed. FRA notes that this point will be emphasized in the next
publication of FRA's Track Safety Standards Compliance Manual. FRA also
makes clear that, in accordance with Sec.  213.233, if a vehicle is
used for visual inspection, the speed of the vehicle may not be more
than 5 m.p.h. when passing over track crossings and turnouts.
    Finally, the last recommendation of the Study addressed ways to
enhance the track safety culture of railroads through programs such as
a safety reporting system, like the Confidential Close Call Reporting
System currently piloted by FRA. The RSAC was aware that the Risk
Reduction Working Group was in the process of developing
recommendations for railroads to develop risk reduction programs, which
should incorporate many safety concerns in this area. Therefore, the
RSAC concluded that additional, overlapping discussion was unnecessary
given the specific concurrent focus of the Risk Reduction Working
Group.
    FRA notes that, in addition to addressing the Study's
recommendations, RSAC task 11-02 also incorporated other goals Congress
had for the Study, which are described in section 403(a), such as
reviewing track inspection intervals and remedial action requirements,
as well as track inspection and repair priorities. The RSAC concluded
that FRA's recent and ongoing rulemakings are sufficiently addressing
these areas and that no additional work is currently necessary.
Specifically, the instant rulemaking is intended to amend inspection
intervals to reflect a new performance-based inspection program, revise
the remedial action table for rail, and alter inspection and repair
priorities involving internal rail testing and defects such as a
crushed head and defective weld. The Concrete Crossties final rule also
established new inspection methods and intervals requiring automated
inspection, as well as new remedial actions for exceptions that can be
field-verified within 48 hours. Finally, in addition to other
requirements, the

Vehicle/Track Interaction Safety Standards (VTI) rulemaking, Vehicle/
Track Interaction Safety Standards; High-Speed and High Cant Deficiency
Operations, 75 FR 25928 (proposed May 10, 2010) (to be codified at 49
CFR parts 213 and 238), is addressing track geometry, inspection, and
VTI safety requirements for high speed operations and operations at
high cant deficiency over any track class.
    Therefore, the RSAC recommended and FRA subsequently concluded that
additional work on any of these areas would be unnecessary at this
time, given the recent and ongoing work of the RSAC and FRA. FRA
believes that its recent and ongoing rulemakings sufficiently address
the statutorily-mandated topics in section 403 and that no additional
work by the RSAC was currently necessary.

VI. Section-by-Section Analysis

Section 213.3 Application

    FRA proposes to modify paragraph (b) to clarify the exclusion of
track located inside a plant railroad's property from the application
of this part. In this paragraph, ``plant railroad'' means a type of
operation that has traditionally been excluded from the application of
FRA regulations because it is not part of the general railroad system
of transportation. In the past, FRA has not defined the term ``plant
railroad'' in other regulations that it has issued because FRA assumed
that its Statement of Agency Policy Concerning Enforcement of the
Federal Railroad Safety Laws, The Extent and Exercise of FRA's Safety
Jurisdiction, 49 CFR part 209, Appendix A (FRA's Policy Statement or
the Policy Statement) provided sufficient clarification as to the
definition of that term. However, it has come to FRA's attention that
certain rail operations believed that they met the characteristics of a
plant railroad, as set forth in the Policy Statement, when, in fact,
their rail operations were part of the general railroad system of
transportation (general system) and therefore did not meet the
definition of a plant railroad. FRA would like to avoid any confusion
as to what types of rail operations qualify as plant railroads. FRA
would also like to save interested persons the time and effort needed
to cross-reference and review FRA's Policy Statement to determine
whether a certain operation qualifies as a plant railroad.
Consequently, FRA has decided to define the term ``plant railroad'' in
this part 213.
    The proposed definition would clarify that when an entity operates
a locomotive to move rail cars in service for other entities, rather
than solely for its own purposes or industrial processes, the services
become public in nature. Such public services represent the interchange
of goods, which characterizes operation on the general system. As a
result, even if a plant railroad moves rail cars for entities other
than itself solely on its property, the rail operations will likely be
subject to FRA's safety jurisdiction because those rail operations
bring plant track into the general system.
    The proposed definition of the term ``plant railroad'' is
consistent with FRA's longstanding policy that it will exercise its
safety jurisdiction over a rail operation that moves rail cars for
entities other than itself because those movements bring the track over
which the entity is operating into the general system. See 49 CFR part
209, Appendix A. Indeed, FRA's Policy Statement provides that
``operations by the plant railroad indicating it [i]s moving cars on *
* * trackage for other than its own purposes (e.g., moving cars to
neighboring industries for hire)'' brings plant track into the general
system and thereby subjects it to FRA's safety jurisdiction. 49 CFR
part 209, Appendix A. Additionally, this interpretation of the term
``plant railroad'' has been upheld in litigation before the U.S. Court
of Appeals for the Fifth Circuit. See Port of Shreveport-Bossier v.
Federal Railroad Administration, No. 10-60324 (5th Cir. 2011)
(unpublished per curiam opinion).
    FRA also makes clear that FRA's Policy Statement addresses
circumstances where railroads that are part of the general system may
have occasion to enter a plant railroad's property (e.g., a major
railroad goes into a chemical or auto plant to pick up or set out cars)
and operate over its track. As explained in the Policy Statement, the
plant railroad itself does not get swept into the general system by
virtue of the other railroad's activity, except to the extent it is
liable, as the track owner, for the condition of its track over which
the other railroad operates during its incursion into the plant.
Accordingly, the rule would make clear that the track over which a
general system railroad operates would not be excluded from the
application of this part, even if the track is located within the
confines of a plant railroad.

Section 213.113 Defective Rails

    Paragraph (a). In this paragraph, FRA is proposing to clarify that
only a person qualified under Sec.  213.7 is qualified to determine
that a track may continue to be utilized once a known defective
condition is identified. FRA accepts the RSAC recommendation to add
``or repaired'' to paragraph (a)(1) to allow railroads to use recently-
developed processes that remove the defective portion of the rail
section and replace that portion utilizing recently-developed weld
technologies commonly referred to as ``slot weld'' or ``wide gap
weld.'' These processes allow the remaining portion of non-defective
rail to remain in the track.
    Paragraph (b). FRA is proposing to redesignate existing paragraph
(b) as paragraph (d) and add a new paragraph (b) providing that
railroads have a four-hour period in which to verify that a suspected
defect exists in the rail section. This would apply only to suspected
defects that may require remedial action notes ``C'' through ``I,''
found in the remedial action table. This would not apply to suspected
defects that may require remedial action notes ``A,'' ``A2,'' or ``B.''
The four-hour timeframe would provide the railroads flexibility to
allow the rail flaw detector car to continue testing in a non-stop
mode, without requiring verification of suspected defects that may
require remedial action under notes ``C'' through ``I,'' when the track
has to be cleared for train traffic movement. However, any suspected
defect encountered that may require remedial action notes ``A,'' ``A2,
``or ``B'' would require immediate verification. This brief, deferred-
verification period would also avoid the need to operate the detector
car in a non-test, ``run light'' mode over a possibly severe defective
rail condition that could cause a derailment while clearing the track.
    The primary purpose of the four-hour deferred-verification option
is to assist the railroads in improving detector car utilization and
production, increase the opportunity to detect larger defects, and
ensure that all the rail the detector car travels over while in service
is inspected. FRA is in agreement with the railroad industry that most
tracks are accessible by road or hi-rail, and will support a deferred-
verification process where the operator can verify the suspect defect
location with a portable type of test unit. FRA also agrees that if the
detector car travels over the rail while in service it is more
beneficial to complete the inspection over that location instead of
leaving a possible serious internal defect undetected in the track.
    Paragraph (c). Currently, the remedial action table and its notes
are included under paragraph (a). FRA is proposing to add a new
paragraph (c) to contain both the table and its notes, as revised.
Specifically, FRA proposes revisions to the remedial action table
regarding

transverse defects. FRA would place the ``transverse fissure'' defect
in the same category as detail fracture, engine burn fracture, and
defective weld because they all normally fail in a transverse plane.
The RITF discussed the possible addition of compound fissure to this
category as well, to combine all transverse-oriented defects under the
same remedial action. However, FRA ultimately determined that
``compound fissure'' should not be included in this category because a
compound fissure may result in rail failure along an oblique or angular
plane in relation to the cross section of the rail and should be
considered a more severe defect requiring more restrictive remedial
action. In addition, FRA proposes that the header of the remedial
action table for all transverse-type defects (i.e. compound fissures,
transverse fissures, detail fractures, engine burn fractures, and
defective welds) be revised to refer to the ``percentage of existing
rail head cross-sectional area weakened by defect,'' to indicate that
all transverse defect sizes are related to the actual rail head cross-
sectional area, thus taking rail head wear into consideration. This is
proposed to preclude the possibility that the flaw detector operator
may size transverse defects without accounting for the amount of rail
head loss on the specimen.
    FRA's proposed revisions to the remedial action table would also
reduce the current limit of eighty percent of the rail head cross-
sectional area requiring remedial action notes ``A2'' or ``E and H'' to
sixty percent of the rail head cross-sectional area. FRA reviewed the
conclusions of the most recent study performed by the Transportation
Technology Center, Inc., concerning the development of transverse-
oriented detail fracture defects: ``Improved Rail Defect Detection
Technologies: Flaw Growth Monitoring and Service Failure
Characterization,'' AAR Report No. R-959, Davis, David D., Garcia,
Gregory A., Snell, Michael E., September 2002. (A copy of this study
has been placed in the public docket for this rulemaking.) The study
concluded that detail fracture transverse development is considered to
be inconsistent and unpredictable. Further, the average growth
development of the detail fracture defects in the study exceeded five
percent of the cross-sectional area of the rail head per every one mgt
of train traffic. Id., at Table 1. Recognizing the impact of these
findings, FRA believes that detail fracture defects reported as greater
than sixty percent of the cross-sectional area of the rail head
necessitate the remedial actions required under this section,
specifically that the railroad assign a person designated under Sec.
213.7 to supervise each operation over the defect or apply and bolt
joint bars to the defect in accordance with Sec.  213.121(d) and (e),
and limit operating speed over the defect to 50 m.p.h. or the maximum
allowable speed under Sec.  213.9 for the class of track concerned,
whichever is lower.
    FRA also proposes adding required remedial action for a
longitudinal defect that is associated with a defective weld. This
proposal is based on current industry detection and classification
experience for this type of defect, and would assign remedial action
for the railroads to utilize. FRA proposes adding this defect to the
remedial action table and including all longitudinal defects within one
group subject to identical remedial actions based on their reported
sizes. These types of longitudinal defects all share similar growth
rates and the same remedial actions are considered appropriate for each
type.
    FRA also proposes the addition of ``Crushed Head'' to the remedial
action table. This type of defect may affect the structural integrity
of the rail section and impact vehicle dynamic response in the higher
speed ranges. The RITF discussed the detection and classification of
this type of defect, and its addition to the table would provide
railroads with a remedial action to utilize. A crushed head defect
would be identified in the table, and defined in paragraph (d) of this
section, as being \3/8\ inch or more in depth and 8 inches or more in
length.
    FRA notes that the AAR expressed some concern regarding Footnote 1
of the remedial action table, which identifies conditions that could be
considered a ``break out in rail head.'' The AAR pointed out that there
had been previous incidents where an FRA inspector would consider a
chipped rail end as a rail defect under this section, and at times the
railroad was issued a defect or violation regarding this condition. FRA
makes clear that a chipped rail end is not a designated rail defect
under this section and is not, in itself, an FRA enforceable defective
condition. Therefore, FRA intends to make clear in the Track Safety
Standards Compliance Manual guidance for FRA inspectors that a chipped
rail end is not to be considered as a ``break out in rail head.''
    FRA proposes the addition of a second footnote, Footnote 2, to the
remedial action table. The footnote would provide that remedial action
``D'' applies to a moon-shaped breakout, resulting from a derailment,
with a length greater than 6 inches but not exceeding 12 inches and a
width not exceeding one-third of the rail base width. FRA has proposed
this change to allow relief because of the occurrence of multiple
``broken base'' defects that result from a dragging wheel derailment
that may prevent traffic movement. FRA also recommends that track
owners conduct a special visual inspection of the rail, pursuant to
Sec.  213.239, before the operation of any train over the affected
track. A special visual inspection pursuant to Sec.  213.239, which
requires an inspection be made of the track involved in a derailment
incident, should be done to assess the condition of the track
associated with these broken base conditions before the operation of
any train over the affected track.

Revisions to the ``Notes'' to the Remedial Action Table

    Notes A, A2, and B. Notes A, A2, and B would be published in their
entirety without substantive change.
    Note C. FRA proposes a revision to remedial action note C, which
applies specifically to detail fractures, engine burn fractures,
transverse fissures, and defective welds, and addresses defects that
are discovered during an internal rail inspection required under Sec.
213.237 and whose size is determined not to be in excess of twenty-five
percent of the rail head cross-sectional area. For these specific
defects, a track owner currently has to apply joint bars bolted only
through the outermost holes at the defect location within 20 days after
it is determined to continue the track in use. However, evaluation of
recent studies on transverse defect development shows that slow crack
growth life is inconsistent and unpredictable. Therefore, FRA believes
waiting 20 days to repair this type of defect is too long. FRA proposes
that for these specific defects a track owner must apply joint bars
bolted only through the outermost holes to the defect within 10 days
after it is determined to continue the track in use. FRA also proposes
that when joint bars have not been applied within 10 days, the track
speed must be limited to 10 m.p.h. until joint bars are applied. The
RITF recommended this addition to allow the railroads alternative
relief from remedial action for these types of defects in Class 1 and 2
track, and FRA agrees with the Task Force.
    Note D. FRA proposes a revision to remedial action note D, which
applies specifically to detail fractures, engine burn fractures,
transverse fissures, and defective welds, and addresses defects that
are discovered during an internal rail inspection required under Sec.
213.237

and whose size is determined not to be in excess of 60 percent of the
rail head cross-sectional area. Currently, for these specific defects,
a track owner has to apply joint bars bolted only through the outermost
holes at the defect location within 10 days after it is determined that
the track should continue in use. However, evaluation of recent studies
on transverse defect development shows that slow crack growth life is
inconsistent and unpredictable. Therefore, FRA determined that allowing
a 10-day period before repairing this type of defect is too long.
Instead, FRA proposes that for these specific defects a track owner
must apply joint bars bolted only through the outermost holes to the
defect within 7 days after it is determined to continue the track in
use. A timeframe of 7 days is sufficient to allow for replacement or
repair of these defects, no matter when a defect is discovered. FRA
also proposes that when joint bars have not been applied within 7 days,
the speed must be limited to 10 m.p.h. until joint bars are applied.
The RITF recommended this addition to allow the railroads alternative
relief from remedial action for these types of defects in Class 1 and 2
track, and FRA agrees with the Task Force.
    Note E. Note E would be published in its entirety without
substantive change.
    Note F. FRA proposes to revise note F so that if the rail remains
in the track and is not replaced or repaired, the re-inspection cycle
starts over with each successive re-inspection unless the re-inspection
reveals the rail defect to have increased in size and therefore become
subject to a more restrictive remedial action. This process would
continue indefinitely until the rail is removed from the track or
repaired. If not inspected within 90 days, the speed would be limited
to that for Class 2 track or the maximum allowable speed under Sec.
213.9 for the class of track concerned, whichever is lower, until
inspected. This change would define the re-inspection cycle and require
the railroad to continue the re-inspection or apply a reduction in
speed.
    Note G. Note G currently requires the railroad to inspect the
defective rail within thirty days after it is determined that the track
should continue to be used. FRA proposes to revise note G so that if
the rail remains in the track and is not replaced or repaired, the re-
inspection cycle would start over with each successive re-inspection
unless the re-inspection reveals the rail defect to have increased in
size and therefore become subject to a more restrictive remedial
action. This process would continue indefinitely until the rail is
removed from the track or repaired. If not inspected within 30 days,
the railroad would be required to limit the speed to that for Class 2
track or the maximum allowable speed under Sec.  213.9 for the class of
track concerned, whichever is lower, until inspected. This change would
define the re-inspection cycle and require the railroad to continue the
re-inspection or apply a reduction in speed.
    Notes H and I. Notes H and I would be published in their entirety
without substantive change.
    Paragraph (d). FRA is proposing to redesignate paragraph (b) as
paragraph (d) and to revise it to define terms used in this section and
in Sec.  213.237. Definitions currently provided in paragraph (b)(1),
(b)(3) through (8), (b)(10) through (13), and (b)(15) would be
published in their entirety without substantive change. However, four
terms would be redefined, and all terms would be enumerated in
alphabetical order.
    (d)(3) Compound fissure. FRA proposes to revise this definition,
including removing the last sentence of the current definition, which
provides that ``[c]ompound fissures require examination of both faces
of the fracture to locate the horizontal split head from which they
originate.'' Rail failure analysis where a pre-existing fatigue
condition is present normally exhibits an identical identifiable
defective condition on both rail fracture faces. Thus, analysis of one
fracture face should be sufficient to determine the type of defect, the
origin of the defect, and the size of the defect. Additionally, it is
typical in the railroad industry that only one failure fracture face is
retained during the subsequent repair phase of rail replacement.
Therefore, FRA has determined that the examination of only one fracture
face is necessary to identify the horizontal split head from which
compound fissures originate, and is proposing to modify the definition
accordingly.
    (d)(4) Crushed head. As discussed earlier, FRA proposes the
addition of ``Crushed head'' to the remedial action table. FRA
recognizes that operators currently detect and classify this type of
defect, and this addition would provide a remedial action for the
railroad to use. Crushed head would be identified in the table and
defined by the current industry standard as being a short length of
rail, not at a joint, which has drooped or sagged across the width of
the rail head to a depth of \3/8\ inch or more below the rest of the
rail head and 8 inches or more in length. FRA proposes that
measurements taken to classify the crushed head defect not include the
presence of localized chips or pitting in the rail head. FRA notes that
it plans to include this language in a section on ``Crushed head'' in
the Track Safety Standards Compliance Manual.
    (d)(6) Defective weld. FRA is proposing to add required remedial
action for a longitudinal defect that is associated with a defective
weld. FRA has determined that the railroad industry currently detects
and classifies this type of defect, and the addition would codify a
specific remedial action for the railroads to utilize. FRA recognizes
that these defects develop in an oblique or angular plane within the
rail section and have growth rates comparable to other longitudinal-
type defects. Therefore, FRA believes that the same remedial action is
appropriate.
    (d)(9) Flattened Rail. FRA proposes a change to the definition of
flattened rail to be aligned with the current industry standard and
Sec.  213.113 Remedial Action Table requirements that the area is
flattened out across the width of the rail head to a depth of \3/8\
inch or more below the rest of the rail and 8 inches or more in length.

Section 213.119 Continuous Welded Rail (CWR); Plan Contents

    FRA proposes removing the requirement under paragraph (h)(7)(ii) of
this section to generate a Joint Bar Fracture Report (Fracture Report)
for every cracked or broken CWR joint bar that the track owner
discovers during the course of an inspection. Currently under this
section, any track owner, after February 1, 2010, could petition FRA to
conduct a technical conference to review fracture report data submitted
through December 2009 and assess the necessity for continuing to
collect this data. One Class I railroad submitted a petition to FRA,
and on October, 26, 2010, a meeting of the RSAC Track Standards Working
Group served as a forum for a technical conference to evaluate whether
there was a continued need for the collection of these reports. The
Group ultimately determined that the reports were costly and burdensome
to the railroads and their employees, while providing little useful
research data to prevent future failures of CWR joint bars. The Group
found that Fracture Reports were not successful in helping to determine
the root cause of CWR joint bar failures because the reports gathered
only a limited amount of information after the joint bar was already
broken.
    Instead, the Group recommended that a new study be conducted to
determine what conditions lead to CWR joint bar failures and include a
description of the

overall condition of the track in the vicinity of the failed joint(s);
photographic evidence of the failed joint, track geometry (gage,
alignment, profile, cross-level) at the joint location; and the
maintenance history at the joint location. Two Class I railroads
volunteered to participate in a new joint bar study, which is expected
to provide better data to pinpoint why CWR joint bars fail. In the
meantime, given that FRA does not find it beneficial to the retain the
existing requirement for railroads to submit CWR Joint Bar Fracture
Reports, FRA proposes to remove the requirement and reserve the
paragraph.

Section 213.237 Inspection of Rail

    Paragraph (a). Currently, under existing paragraph (a) of this
section, Class 4 and 5 track, as well as Class 3 track over which
passenger trains operate, is required to be tested for internal rail
defects at least once every accumulation of 40 mgt or once a year
(whichever time is shorter), and Class 3 track over which passenger
trains do not operate is required to be tested at least once every
accumulation of 30 mgt or once per year (whichever time is longer).
When this provision was drafted, railroads were already initiating and
implementing the development of a performance-based risk management
concept for determining rail inspection frequency, which is often
referred to as the ``self-adaptive scheduling method.'' Under this
method, inspection frequency is established based on several factors,
including the total detected defect rate per test, the rate of service
failures between tests, and the accumulated tonnage between tests. The
railroads then utilize this information to generate and maintain a
service failure performance target.
    This NPRM proposes to revise paragraph (a) to require railroads to
maintain service failure rates of no more than 0.1 service failure per
year per mile of track for all Class 4 and 5 track; no more than 0.09
service failure per year per mile of track for all Class 3, 4, and 5
track that carries regularly-scheduled passenger trains or is a
hazardous material route; and no more than 0.08 service failure per
year per mile of track for all Class 3,4, and 5 track that carries
regularly-scheduled passenger trains and is a hazardous material route.
    The proposed changes to this section seek to codify standard
industry good practices. With the implementation of the self-adaptive
method, railroads generally test more frequently than currently
required, and the test intervals align more closely with generally-
accepted maintenance practices. The frequency of rail inspection cycles
vary according to the total detected defect rate per test; the rate of
service failures, as defined in paragraph (j) below, between tests; and
the accumulated tonnage between tests--all of which are factors that
the railroad industry's rail quality managers generally consider when
determining test schedules.
    In 1990, as a result of its ongoing rail integrity research, FRA
released report DOT/FRA/ORD-90/05; Control of Rail Integrity by Self-
Adaptive Scheduling of Rail Tests; Volpe Transportation Systems Center;
Oscar Orringer. The research objective was to provide the basis for a
specification to adequately control the scheduling of rail tests of
U.S. railroads. The research provided quantitative guidelines for
scheduling rail tests based on rail defect behavior. The purpose of
this method for scheduling rail tests is to establish a performance
goal that is most advantageous to the control of rail flaw development
and subsequent rail failure in a designated track segment. If the
performance goal is not met, a responsive adjustment is triggered to
the rail test schedule to ensure that the goal is met.
    The research determined that a minimum requirement for annual rail
testing requires a baseline figure of 0.1 service failure per mile for
freight railroads. This baseline value can then be adjusted depending
on characteristics of the individual railroad's operation and internal
risk control factors. For instance, a railroad that handles multiple
passenger trains a day may require scheduling rail test frequencies
adequate to maintain a performance goal of 0.03 service failure. The
baseline value applied for determining rail test frequencies can also
be adjusted based on specific conditions that may influence rail flaw
development such as age of the rail, rail wear, climate, etc. As a
result, the RITF reached consensus that 0.1 service failure per mile
was established as an appropriate minimum performance requirement for
use in the U.S. freight railroad system. The Task Force also reached
consensus that the minimum performance requirement should be adjusted
to no more than 0.09 service failure per year per mile of track for all
Class 3, 4, and 5 track that carries regularly-scheduled passenger
trains or is a hazardous material route, and no more than 0.08 service
failure per year per mile of track for all Class 3, 4, and 5 track that
carries regularly-scheduled passenger trains and is a hazardous
material route.
    Paragraph (b). Current paragraph (b) would be redesignated as
paragraph (f) without substantive change. Under new paragraph (b), each
rail inspection segment would be designated by the track owner. While
the RITF discussed at length how best to define the term ``segment'' as
it relates to inspection of rail under this section, ultimately the
Task Force could not come to a consensus on a definition. The BMWED,
NTSB and AAR were split on how best to define this term, and so no
recommendation was ever made to the full RSAC. The BMWED and NTSB were
concerned that collecting service failure rates that were averaged over
excessively large segments of track (such as segments longer than a
subdivision length) would fail to identify discrete areas of weakness
with chronically high concentrations of service failures. At the same
time, the BMWED and NTSB also recognized that if a segment size was too
small, one random failure could trigger a service failure rate in
excess of the performance target under this section. The BMWED and NTSB
recommended that FRA impose a specific, uniform segment rate to be used
by all railroads that is calculated to achieve the optimal length to
avoid these problems.
    The AAR, on the other hand, maintained that each individual
railroad is in the best position to determine its own segment lengths
based on factors that are unique to the railroad's classification
system. The AAR noted that each railroad has distinct segment
configurations and challenges for which each railroad has developed
specific approaches to identify and address them. The AAR believed that
it was not possible to define a single methodology to appropriately
address every railroad's specific configurations and factors, and that
any approach established in a regulation would be extremely difficult
and costly to implement. The AAR stated that the large amount of route
miles, complex networks, and vast quantities of data being analyzed on
Class I railroads requires an automated electronic approach that
integrates satisfactorily with each railroad's data system, which
currently Class I railroads utilize. Arbitrary segmentation limitations
developed through regulation would not be compatible with some of those
systems and would create an onerous and costly burden of redesigning
systems, with little overall improvement to safety, according to the
AAR. The AAR maintained that each individual service failure represents
a certain risk which is not affected by whether it is close to other
service failures. The AAR contended that the railroads want the service
failure rate to

be as low as possible and look for any patterns in service failures
that suggest ways to reduce the service failure rate. Noting that these
patterns can be affected by a myriad of different factors, the AAR
stated that trying to create artificial boundaries on the length of a
segment could lead to a less than optimal use of internal rail
inspection capabilities, as well as decreased safety.
    While FRA acknowledges the BMWED's and NTSB's concerns regarding
identifying localized areas of failure, FRA recognizes that railroads
have designed their current segment lengths through a decade of
researching their own internal system rail testing requirements. This
research takes into consideration pertinent criteria such as rail age,
accumulated tonnage, rail wear, track geometry, and other conditions
specific to these individual railroad-defined segments. FRA believes
that altering existing railroad segment lengths without extensive data
and research could be financially burdensome to individual railroads
and detrimental to established rail maintenance programs, without
yielding significant safety benefits.
    FRA believes that requiring a designated segment length that
focuses on these localized areas could disrupt current engineering
policies and result in problematic and costly adjustments to the
railroads' current maintenance programs without providing significant
safety benefits. In addition, recognizing the BMWED's and NTSB's
concerns, FRA believes that railroads, as well as FRA, will be able to
capture rail failure data, even in large segment areas, by simply
looking at rail failure records and comparing milepost locations.
Therefore, FRA is not recommending a uniform segment length to be
applied by all railroads. Instead, FRA recommends that railroads
utilize their own designated segment lengths, which they would be using
at the time of the promulgation of the final rule arising from this
NPRM. However, in order to maintain consistency and uniformity, FRA
would require that if a railroad wishes to change or deviate from its
segment lengths, the railroad must receive FRA approval to make that
change. This would ensure that the railroad does not have the ability
to freely alter the defined segment length in order to compensate for a
sudden increase of detected defects and service failures that could
require an adjustment to the test frequency as a result of accelerated
defect development.
    Paragraph (c). FRA is proposing to redesignate current paragraph
(c) as paragraph (e) and revise it, as discussed below. In new
paragraph (c) FRA proposes that internal rail inspections on Class 4
and 5 track, or Class 3 track with regularly scheduled passenger trains
or that is a hazardous materials route, not exceed a time interval of
370 days between inspections or a tonnage interval of 30 mgt between
inspections, whichever is shorter. The addition of this 370-day
interval or 30-mgt accumulation would provide a maximum timeframe
between tests on lines that may not be required to undergo testing on a
more frequent basis in order to achieve the performance target rate. If
limits were not set, for example, a railroad line carrying only 2 mgt a
year could possibly go 15 years without testing. This length of time
without testing was unacceptable to the Task Force; therefore, these
proposed limits were included.
    Paragraph (c) would also provide that internal rail inspections on
Class 3 track without regularly-scheduled passenger trains that is not
a hazardous materials route must be inspected at least once each
calendar year, with no more than 18 months between inspections, or at
least once every 30 mgt, whichever interval is longer, with the
additional provision that inspections cannot be more than 5 years
apart. The additional requirement for a maximum inspection interval of
370 days or tonnage accumulation of 30 mgt between rail inspections
would provide a maximum time and tonnage interval between rail tests
for low-tonnage lines. The reason why testing for internal rail defects
would be decreased from 40 mgt to 30 mgt is because studies have shown
that, while the predominant factor that determines the risk of rail
failure is the rate of development of internal flaws, the development
of internal rail flaws is neither constant nor predictable. Previous
studies on the development of transverse-oriented rail defects showed
the average development period to be 2% of the cross-sectional area of
the rail head per mgt, which meant that rail testing would have to
completed within every 50 mgt. However, the RITF took into
consideration the conclusions of a more recent study performed by the
Transportation Technology Center, Inc., Improved Rail Defect Detection
Technologies: Flaw Growth Monitoring and Service Failure
Characterization, AAR Report NO. R-959, Gregory A. Garcia, Michael E.
Snell, David D. Davis, September 2002, concerning the development of
transverse-oriented detail fracture defects, which concluded that
detail fracture transverse development averaged 5% of the cross-
sectional area of the rail head per mgt. This would mean that testing
would have to be done every 20 mgt. However, the study also concluded
that development of internal rail flaws was considered to be
inconsistent and unpredictable. Thus, as a result, consensus was
reached to lower the 40-mgt limit between tests to 30 mgt.
    Selecting an appropriate frequency for rail testing is a complex
task involving many different factors including rail head wear,
accumulated tonnage, rail surface conditions, track geometry, track
support, steel specifications, temperature differentials, and residual
stresses. Taking into consideration the above factors, FRA's research
suggests that all of these criteria influence defect development (and
ultimately rail service failure rates) and are considered in the
determination of rail inspection frequencies when utilizing the
performance-based self-adaptive test method.
    For railroads without access to a sophisticated self-scheduling
algorithm to determine testing frequencies, FRA would post an algorithm
program designed by the Volpe Center on the FRA Web site. The algorithm
would require five inputs: (1) Service failures per mile in the
previous year; (2) detected defects per mile in the previous year; (3)
annual tonnage; (4) number of rail tests conducted in the previous
year; and (5) the targeted number of service failures per mile. Once
the input is complete, the algorithm would take the average of two
numbers when it calculates the number of rail tests. The first number
would be based on the service failure rate. The second would be based
on the total defect rate, which is the service defect rate plus the
detected defect rate. This rate of designated tests per year for the
designated segment would be the number of required tests per year
enforced by FRA for the segment.
    The NPRM also proposes the addition of requirements for inspection
of rail intended for reuse, or ``plug rail.'' On March 8, 2006, FRA
issued Notice of Safety Advisory 2006-02 (SA), which promulgated
recommended industry guidelines for the reuse of plug rail. 71 FR
11700. The recommendations in the SA consisted of two options for
assuring that reused rail was free from internal defects.
    Specifically, FRA's SA recommended that the entire length of any
rail that is removed from track and stored for reuse must be retested
for internal flaws. FRA also recommended that, recognizing that some
railroads do not have the equipment to test second-hand rail in
accordance with the recommendation above, railroads were encouraged to

develop a classification program intended to decrease the likelihood
that a railroad will install second-hand rail containing defects back
into active track. In addition, FRA recommended that a highly visible
permanent marking system be developed and used to mark defective rails
that railroads remove from track after identifying internal defects in
those rails.
    During some of the first RITF discussions, the NTSB expressed
concern over one aspect of FRA's SA: the guidance that provides that
rail is suitable for reuse if it has not accumulated more than 15 mgt
since its last valid rail test. The NTSB suggested that such rail could
experience up to 55 mgt before its next inspection if it were put in
track at a location that had just been inspected and whose inspection
frequency is every 40 mgt. The NTSB believed that all plug rail should
be immediately inspected prior to reuse.
    Also during RITF discussions, railroads described their method for
assuring that rail intended for reuse is free of internal defects. In
general, it was found that most railroads perform an ultrasonic
inspection on rail intended for reuse while in the track and allow
accumulation of tonnage prior to removal, or they perform an inspection
and certification process of the rail after it has been taken out of
service and prior to re-installation. However, the railroads stressed
that plug rail inspection requirements should not be overly burdensome
and should meet the same standards as any other rail inspections per
the regulations.
    FRA shares the railroads' concerns about creating a standard for
rail inspection that would allow 30-mgt accumulation on in-service
rail, but would mandate immediate inspection of plug rail prior to
reuse. Consequently, FRA's proposal allows for plug rail to be
inspected at the same frequency as conventional rail. This proposal
would, therefore, supersede FRA Safety Advisory 2006-02 and codify
current industry practice by allowing the use of rail that has been
previously tested to be placed in track and retested at the normal
frequency for that track segment. Nonetheless, all else being equal,
FRA does recommend that the rail be tested prior to installation in
track for reuse, even though FRA believes that requiring that the
railroad test the rail immediately prior to installation is too
restrictive. Alternatively, FRA believes that the railroad should have
knowledge of the date the rail was last tested and ensure that the
maximum tonnage of 30 mgt is not exceeded prior to retesting the rail.
Once the rail is installed in track, FRA expects the rail to be tested
in accordance with the test frequency of the designated segment. FRA
would require the railroad to have the ability to verify when the rail
was last tested and the accumulated tonnage prior to installation.
    Paragraph (d). Current paragraph (d) would be redesignated as
paragraph (g) and revised, as discussed below. In new paragraph (d),
FRA proposes restrictions that would apply if the service failure
target rate is not achieved on a segment of track for two consecutive
twelve-month periods. FRA recognizes that the service failure target
rate may be exceeded within one defined twelve-month period. Therefore,
the railroad would be allowed an additional year to adjust its rail
integrity management program to bring the service failure rate on the
offending track segment into compliance with the requirements. If the
service failure target rate is exceeded for two consecutive twelve-
month periods, the railroad would be required to comply with the
requirements in paragraph (d) for either a minimum rail test frequency
or a speed restriction on the offending track segment.
    Paragraph (e). As noted above, FRA is proposing to redesignate
paragraph (c) as paragraph (e) with some revision. Specifically, in
paragraph (e) FRA proposes to require that each defective rail be
marked with a highly visible marking on both sides of the web and base
except that, where a side or sides of the web and base are inaccessible
because of permanent features, the highly visible marking would be
placed on or next to the head of the rail. This option to mark the rail
head in certain situations would provide an alternative to the railroad
in areas where the web or base may not be accessible. Current paragraph
(e) would be redesignated as paragraph (h) and revised, as discussed
below.
    Paragraph (f). As stated above, FRA proposes to redesignate current
paragraph (b) as paragraph (f) without substantive change.
    Paragraph (g). Paragraph (g) would address the case where a valid
search for internal rail defects could not be made because of rail
surface conditions. Several types of technologies are presently
employed to continuously search for internal rail defects, some capable
of displaying and monitoring search signal returns. A continuous search
is intended to mean an uninterrupted search by whatever technology is
being used, so that there are no segments of rail that are not tested.
If the test is interrupted, e.g., as a result of rail surface
conditions that inhibit the transmission or return of the signal, then
the test over that segment of rail may not be valid because it was not
continuous. Therefore, as proposed in the NPRM, a valid search for
internal rail defects would be defined in paragraph (j), below, as a
``valid test'' during which the equipment is performing as intended and
equipment responses are interpreted by a qualified operator as defined
in Sec.  213.238. In conducting a valid search, the operator would need
to determine that the test has not been compromised due to
environmental contamination, rail conditions, or test equipment
performance.
    Paragraph (h). FRA proposes to redesignate current paragraph (e) as
paragraph (h) and revise it. In paragraph (h), FRA proposes to specify
the options available to a railroad following a non-test. These options
must be exercised prior to the expiration of the time or tonnage limits
specified in paragraphs (a) or (c) of this section.
    Paragraph (i). FRA proposes a new paragraph (i) to require that the
rail flaw detector car operator be qualified as defined in new Sec.
213.238, ``Qualified operator,'' which would prescribe minimum training
requirements for railroad personnel performing in this occupation.
    Paragraph (j). FRA proposes to add paragraph (j) to provide new
definitions for terms that are used in this section and that are
applicable only to this section.
    Hazardous materials route. FRA proposes a definition for
``hazardous material route'' to be applied when determining the service
failure target rate pursuant to paragraph (a) of this section.
    Plug rail. FRA proposes a definition for ``plug rail'' to mean a
length of rail that has been removed from one track location and stored
for future use as a replacement rail at another location.
    Service failure. FRA proposes that only the listed fatigue defects,
i.e., compound fissure, transverse fissure, detail fracture, or
vertical split head, are to be utilized for determining the fatigue
service failure rate. Since other defect types are more likely to go
undetected, and how well defects can be detected is influenced by
conditions other than fatigue, they would not be included in the
service failure rate calculation.
    Valid search. FRA proposes a definition to ensure that a valid test
under this section has been conducted. As proposed, the test equipment
must perform as intended and equipment responses must be properly
interpreted by a qualified operator as defined in Sec.  213.238.

Section 213.238 Qualified Operator

    FRA proposes to add this new section to require that any entity
that conducts rail flaw detection have a documented training program to
ensure that a flaw detection equipment operator is qualified to operate
each of the various types of equipment currently utilized in the
industry for which he or she is assigned, and that proper training is
provided if new rail flaw detection technologies are utilized.
    As proposed in paragraph (b), the operator must have documentation
from his or her employer that designates his or her qualifications to
perform various functions associated with the flaw detection process.
Specifically, requirements are proposed to help ensure that the
operator is able to determine that a valid search for internal rail
flaws is conducted, the equipment is functioning properly at all times,
and the operator can properly interpret the test results and understand
test equipment environmental limitations.
    In paragraph (c), FRA proposes that the operator must receive a
minimum amount of documented, supervised training according to the rail
flaw detection equipment or employer's training program. FRA
understands that this training may not be entirely held within the
classroom environment and is in agreement that the employer should have
the flexibility to determine the training process that is appropriate
for compliance. The operator would be required to demonstrate
proficiency for each type of equipment the employer intends the
operator to use, and documentation must be available to FRA to verify
the qualification.
    As proposed in paragraph (d), operator reevaluation and, as
necessary, refresher training would be provided in accordance with the
employer's training program. The employer would be provided the
flexibility to determine the necessary process and the frequency.
    In paragraph (e), FRA proposes that the employer maintain a written
or electronic record of each operator's qualification. The record must
include the operator's name, type of equipment qualification, date of
initial qualification, and most recent re-evaluation of his or her
qualifications, if any. This proposal is intended to ensure consistent
recordkeeping and that FRA can accurately verify compliance.
    FRA proposes in paragraph (f) that existing rail flaw detection
operators, prior to the date of promulgation of the final rule arising
from this rulemaking, be considered qualified to operate the equipment
as designated by the employer. Any employee that is considered for the
position of qualified operator subsequent to the date of promulgation
of the final rule must be qualified in accordance with paragraph (c) of
this section.
    Finally, in paragraph (g) FRA proposes that the records
specifically associated with the operator qualification process are
maintained at a designated location and made available to FRA as
requested. This is intended to assist FRA to accurately verify the
railroad's compliance.

Section 213.241 Inspection Records

    This section contains requirements for keeping, handling, and
making available records of track inspections required in accordance
with subpart F.
    Paragraphs (a) and (b) would remain unchanged.
    FRA proposes to revise paragraph (c) to require that the railroad's
rail inspection records include the date of inspection, track
identification and milepost for each location tested, type of defect
found and size if not removed prior to traffic, and initial remedial
action as required by Sec.  213.113. FRA also proposes that all tracks
that do not receive a valid test be documented in the railroad's rail
inspection records. These changes would respond to a recommendation
arising out of the report by DOT's OIG referenced above, ``Enhancing
the Federal Railroad Administration's Oversight of Track Safety
Inspections,'' CR-2009-038, February 24, 2009, which is available on
the OIG's public Web site at: http://www.oig.dot.gov/sites/dot/files/pdfdocs/Signed_Final_Track_Safety_Report_02-24-09.pdf. The OIG
recommended that FRA ``[r]evise its track safety regulations for
internal rail flaw testing to require the railroads to report all track
locations (milepost numbers or track miles) covered during internal
rail flaw testing.'' See OIG report at p. 8. The last sentence of
current paragraph (c) would be moved to paragraph (d), as discussed
below.
    FRA proposes to redesignate current paragraph (d) as paragraph (f).
In its place, FRA proposes to move to paragraph (d) and slightly modify
the last sentence in current paragraph (c). In paragraph (d), FRA
proposes that the railroads be required to maintain the rail inspection
records at least for two years after an inspection has occurred and for
one year after the initial remedial action has been taken. This
information is vital for FRA to determine compliance with the rail
integrity and inspection requirements in Sec.  213.113 and Sec.
213.237.
    FRA proposes to redesignate current paragraph (e) as paragraph (g)
without substantive change. In new paragraph (e), FRA proposes that
rail inspection records must be maintained to sufficiently demonstrate
compliance with proposed Sec.  213.237(a). This requirement is intended
to provide sufficient information to determine that accurate data
concerning detected defects is utilized by the railroads as input into
the performance-based test frequency formula. During RITF discussions,
the railroads asked that FRA requests for records of rail inspections
demonstrating compliance with required test frequencies be made by a
designated FRA Rail Integrity Specialist; each railroad would then
designate a person within its organization whom the Rail Integrity
Specialists would contact when requesting records of rail inspections.
FRA agrees that this suggested approach would be an efficient way to
obtain inspection records and FRA intends to adopt this approach
through guidance in FRA's Track Safety Compliance Manual.
    As discussed above, FRA proposes to redesignate current paragraph
(d) as paragraph (f) without substantive change. The paragraph provides
that track inspection records be made available for inspection and
copying by the Federal Railroad Administration upon request.
    As discussed above, FRA proposes to redesignate current paragraph
(e) as paragraph (g) without substantive change. This paragraph
contains requirements for maintaining and retrieving electronic records
of track inspections.

VII. Regulatory Impact and Notices

A. Executive Orders 12866 and 13563 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 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
proposed rule. As part of the regulatory evaluation, FRA has assessed
any quantitative costs from the implementation of this rule as
proposed, and believes that the rail industry is already in compliance
with the proposed requirements and that there are no new costs
associated with the rule. FRA has also estimated the benefits of the
rule and that, for a 20-

year period, the industry would save $61.3 million, with a present
value (PV, 7) of $34.8 million. This cost-benefit analysis of the rule
shows that the potential benefits from the proposal would exceed any
costs.
    FRA considered potential industry costs associated with the
proposed rule, including: minimum qualification requirements for rail
flaw detection equipment operators, as well as revisions to
requirements for effective rail inspection frequencies, rail flaw
remedial actions, and requirements for rail inspection records. The
bulk of this proposed regulation would codify the railroad industry's
current good practices. FRA believes that the railroad industry is
currently following these practices, but requests comments in our
assumptions, specifically the extent to which all Class III railroads
with Class 3, 4 or 5 track would already be in compliance with this
rule as proposed. For more details, please see the Regulatory
Evaluation found in the docket.
    As part of the Regulatory Evaluation, FRA also explained what the
likely benefits for this proposed rule would be, and provided a cost-
benefit analysis. FRA anticipates that this rulemaking would enhance
the current Track Safety Standards by allocating more time to rail
inspections, increasing the opportunity to detect larger defects
sooner, providing assurance that qualified operators are inspecting the
rail, and causing inspection records to contain more useful
information. The main benefit associated with this proposed rule is
derived from granting the railroads a four-hour window to verify
defects found in a rail inspection. Without the additional time to
verify a defect, railroads currently must stop their inspection when a
suspect defect is identified and then resume their inspection after the
defect is verified. The defects subject to the proposed deferred
verification allowance are usually considered less likely to cause
immediate rail failure, and require less restrictive remedial action.
The additional time permits railroads to avoid the cost of paying their
internal inspection crews or renting a rail car flaw detector an
additional half day, saving the industry $8,400 per day. FRA believes
the value of the anticipated benefits would easily justify any cost of
implementing the rule as proposed.

                   20-Year Benefits for Proposed Rule
------------------------------------------------------------------------

------------------------------------------------------------------------
Four-Hour Inspection Window.............................    $34,754,935*
                                                         ---------------
    Total...............................................    $34,754,935*
------------------------------------------------------------------------
* Benefits are discounted to present value using a 7 percent discount
  rate.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
Executive Order 13272 (67 FR 53461; August 16, 2002) require agency
review of proposed and final rules to assess their impact on small
entities. An agency must prepare an initial regulatory flexibility
analysis (IRFA) unless it determines and certifies that a rule, if
promulgated, would not have a significant impact on a substantial
number of small entities. FRA has not determined whether this proposed
rule would have a significant impact on a substantial number of small
entities. Therefore, FRA is publishing this IRFA to aid the public in
commenting on the potential small business impacts of the proposed
requirements in this NPRM. FRA invites all interested parties to submit
data and information regarding the potential economic impact on small
entities that would result from the adoption of this NPRM. FRA will
consider all comments received in the public comment process when
making a final determination.
    The proposed rule would apply to all railroads that own Class 3, 4
or 5 track. Based on information currently available, FRA estimates
that all small entities are already in compliance the proposed rule.
Therefore, FRA believes that no small business would be negatively
impacted by the proposed rule, as there are no additional costs.
    Based on FRA's railroad reporting data from 2010 there are 710
Class III railroads; however, of those 710, only 58 own Class 3, 4 or 5
track and could be considered small for the purposes of this analysis.
FRA knows that 51 of those railroads are already in compliance with the
rule, as proposed, and believes that the other 7 Class III railroads
are also in compliance, but does not have that information to confirm
this statement. FRA requests comments on this assumption believing that
no extra investments or costs would need to be made to meet the
proposed requirements. Even if those 7 entities were impacted, the
economic impact on them would likely not be significant. This IRFA is
not intended to be a stand-alone document. The discussion of total
regulatory cost in the Regulatory Evaluation is the basis for the
estimates in this IRFA and it has been placed in the docket for public
review as it provides extensive information about any costs of the
proposed regulation for each specific requirement in this NPRM.
    In accordance with the Regulatory Flexibility Act, an IRFA must
contain:
     A description of the reasons why the action by the agency
is being considered.
     A succinct statement of the objectives of, and legal basis
for, the proposed rule.
     A description--and, where feasible, an estimate of the
number--of small entities to which the proposed rule will apply.
     A description of the projected reporting, record keeping,
and other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirements and the types of professional skills necessary for
preparation of the report or record.
     An identification, to the extent practicable, of all
relevant Federal rules that may duplicate, overlap, or conflict with
the proposed rule.
1. Reasons for Considering Agency Action
    The goal of the proposed rule is to amend the existing Federal
Track Safety Standards to improve rail flaw detection processes and
promote safety in railroad operations. Rail Integrity is a priority for
FRA and the railroad industry. FRA is using this opportunity to
modernize Federal track standards with the industry's current good
practices. FRA would also grant the railroads a 4-hour window to verify
a defect. This would save the industry millions of dollars, as it takes
additional time and money to not only obtain or operate, or both, a
rail flaw detector car, but also find free time on track segments to
conduct additional inspections.
    After reviewing the current track standards, FRA determined the
best, most cost-efficient and beneficial way to modernize our standards
was to propose this rule. FRA anticipates that the proposed
requirements would be accepted by the industry as being as unobtrusive
as possible.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
    The purpose of this rulemaking is to amend the Federal Track Safety
Standards to improve rail flaw detection processes and promote the
safety of railroad operations.
    Pursuant to 49 U.S.C. 20103, the Secretary maintains general
authority to prescribe regulations as necessary in

any area of railroad safety. The Track Safety Standards fall under this
purview. Additionally, on October 16, 2008, the RSIA was enacted into
law. Section 403(a) of the RSIA required the Secretary to conduct a
study of track issues, known as the Track Inspection Time Study
(Study). The study was completed and presented to Congress on May 2,
2011. Section 403(c) of the RSIA further provides that FRA prescribe
regulations based on the results of the Study two years after its
completion. As delegated by the Secretary, FRA initially looked at
creating a new regulation focusing on the recommendations of the Study;
however, it was determined that multiple proposed rules were already
addressing these recommendations. Therefore, this regulation in
conjunction with other recent proposed and final FRA rules will allow
FRA to fulfill the RSIA mandate.
    Overall, FRA is using this opportunity to improve the existing
track safety standards in 49 CFR part 213.
3. A Description of, and Where Feasible, an Estimate of Small Entities
To Which the Proposed Rule Would Apply
    The ``universe'' of the entities to be considered generally
includes only those small entities that are reasonably expected to be
directly regulated by this rulemaking. This proposed rule would affect
all railroads that own Class 3, 4 or 5 track.
    ``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines
a ``small entity'' as having the same meaning as ``small business
concern'' under section 3 of the Small Business Act. This includes any
small business concern that is independently owned and operated, and is
not dominant in its field of operation. Section 601(4) likewise
includes within the definition of ``small entities'' not-for-profit
enterprises that are independently owned and operated, and are not
dominant in their field of operation. The 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.'' Additionally, 5 U.S.C. 601(5) defines as ``small
entities'' governments of cities, counties, towns, townships, villages,
school districts, or special districts with populations less than
50,000.
    Federal agencies may adopt their own size standards for small
entities in consultation with the SBA and in conjunction with public
comment. Pursuant to that authority, FRA has published a final
statement of agency policy that formally establishes ``small entities''
or ``small businesses'' as being railroads, contractors, and hazardous
materials shippers that meet the revenue requirements of a Class III
railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less
in inflation-adjusted annual revenues; and commuter railroads or small
governmental jurisdictions that serve populations of 50,000 or less.
See 68 FR 24891, May 9, 2003, codified at appendix C to 49 CFR part
209. The $20 million-limit is based on the Surface Transportation
Board's revenue threshold for a Class III railroad. Railroad revenue is
adjusted for inflation by applying a revenue deflator formula in
accordance with 49 CFR 1201.1-1. FRA is proposing to use this
definition for this rulemaking. Any comments received pertinent to its
use will be addressed in the final rule.
    According to FRA, there are a total of 763 regulated railroads.
There are 7 Class I railroads and 12 Class II railroads, all which are
not considered to be small. There are a total of 29 commuter/passenger
railroads, including Amtrak, affected by this rule. However, most of
the affected commuter railroads are part of larger public
transportation agencies that receive Federal funds and serve major
jurisdictions with populations greater than 50,000.
    The level of costs incurred by each railroad should generally vary
in proportion to the number of miles of Class 3, 4 or 5 track. For
instance, railroads with less mileage should have lower overall costs
associated with implementing the standards, as proposed. There are 710
Class III railroads. Of those railroads, only 58 are affected by the
rule. However, FRA has confirmation that 51 of these small railroads
are already in compliance with this regulation. FRA also believes that
the remaining 7 affected Class III railroads are also in compliance,
and that no small entity would be negatively impacted by this
regulation.
4. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including an Estimate of the Class
of Small Entities That Will Be Subject to the Requirements and the Type
of Professional Skill Necessary for Preparation of the Report or Record
    For a thorough presentation of cost estimates, please refer to the
Regulatory Evaluation, which has been placed in the docket for this
rulemaking.
    Rail and infrastructure integrity specialists in FRA's Office of
Railroad Safety anticipate that all railroads that would be required to
comply with the regulation, as proposed, are already in compliance with
the proposed requirements. Even if the 7 small railroads that FRA
assumed are in compliance with the rule are not, the added costs would
be minimal. FRA estimates that it would cost a Class III railroad
$2,000 per day to rent a rail flaw detector car. The average Class III
railroad that owns Class 3, 4, or 5 track has approximately 70 miles of
track. FRA estimates it would take 3 days to inspect their entire
track. The total cost per railroad would be $6,000 per year. Again, FRA
is confident that these railroads are already inspecting their track at
least once a year; however, if these entities were not in compliance,
FRA believes a cost of $6,000 per year would not be a significant
economic impact on the railroads.
5. An Identification, to the Extent Practicable, of All Relevant
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
    FRA is not aware of any relevant Federal rules that may duplicate,
overlap or conflict with the specific requirements proposed in this
rule.
    FRA invites all interested parties to submit data and information
regarding the potential economic impact that would result from adoption
of the proposals in this NPRM. FRA will consider all comments received
in the public comment process when making a final determination.

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.

----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
           CFR section             Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
213.4--Excepted track:
    --Designation of track as      236 railroads......  20 orders..........  15 minutes.........               5
     excepted.
    --Notification to FRA about    236 railroads......  15 notification....  10 minutes.........               3
     removal of excepted track.
213.5--Responsibility of track     763 railroads......  10 notification....  8 hours............              80
 owners.
213.7--Designation of qualified
 persons to supervise certain
 renewals and inspect track:
    --Designation................  763 railroads......  1,500 names........  10 minutes.........             250
    --Employees trained in CWR     37 railroads.......  8,000 trained        90 minutes.........          12,000
     procedures.                                         employees.
    --Written authorizations and   37 railroads.......  8,000 auth. + 8,000  10 minutes + 60               9,333
     recorded exams.                                     exams.               minutes.
    --Designations (partially      37 railroads.......  250 names..........  10 minutes.........              42
     qualified) under paragraph
     (c) of this section.
213.17--Waivers..................  763 railroads......  6 petitions........  24 hours...........             144
213.57--Curves, elevation and
 speed limitations:
    --Request to FRA for approval  763 railroads......  2 requests.........  40 hours...........              80
    --Notification to FRA with     763 railroads......  2 notifications....  45 minutes.........               2
     written consent of other
     affected track owners.
    --Test plans for higher        1 railroad.........  2 test plans.......  16 hours...........              32
     curving speeds.
213.110--Gage restraint
 measurement systems (GRMS):
    --Implementing GRMS--notices   763 railroads......  5 notifications + 1  45 minutes.........               8
     & reports.                                          tech rpt.
    --GRMS vehicle output reports  763 railroads......  50 reports.........  4 hours 5 minutes..               4
    --GRMS vehicle exception       763 railroads......  50 reports.........  5 minutes..........               4
     reports.
    --GRMS/PTLF--procedures for    763 railroads......  4 proc. docs.......  2 hours............               8
     data integrity.
    --GRMS training programs/      763 railroads......  2 programs + 5       16 hours...........             112
     sessions.                                           sessions.
    --GRMS inspection records....  763 railroads......  50 records.........  2 hours............             100
213.118--Continuous welded rail
 (CWR); plan review and approval:
    --Plans with written           279 railroads......  279 plans..........  4 hours............           1,116
     procedures for CWR.
    --Notification to FRA and RR   279 railroads......  279 + 8,000          15 minutes + 2                  336
     employees of CWR plan                               notifications.       minutes.
     effective date.
    --Written submissions after    279 railroads......  20 submissions.....  2 hours............              40
     plan disapproval.