[Federal Register Volume 85, Number 195 (Wednesday, October 7, 2020)]
[Rules and Regulations]
[Pages 63362-63392]
[FR Doc No: 2020-18339]

Vol. 85

Wednesday,

No. 195

October 7, 2020

Part II

Department of Transportation

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Federal Railroad Administration

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49 CFR Part 213

Rail Integrity and Track Safety Standards; Final Rule

Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 /
Rules and Regulations

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

[Docket No. FRA-2018-0104, Notice No. 2]
RIN 2130-AC53

Rail Integrity and Track Safety Standards

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

ACTION: Final rule.

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SUMMARY: FRA is revising its regulations governing the minimum safety
requirements for railroad track. The changes include allowing
inspection of rail using continuous rail testing; allowing the use of
flange-bearing frogs in crossing diamonds; relaxing the guard check
gage limits on heavy-point frogs used in Class 5 track; removing an
inspection-method exception for high-density commuter lines; and other
miscellaneous revisions. Overall, the revisions will benefit track
owners, railroads, and the public by reducing unnecessary costs and
incentivizing innovation, while improving rail safety.

DATES: This final rule is effective October 7, 2020 in accordance with
5 U.S.C. 553(d)(1).

ADDRESSES: Docket: For access to the docket to read background
documents or comments received, go to http://www.regulations.gov at any
time.

FOR FURTHER INFORMATION CONTACT: Yu-Jiang Zhang, Staff Director, Track
and Structures Division, Office of Railroad Safety, Federal Railroad
Administration, 1200 New Jersey Avenue SE, W33-302, Washington, DC
20590, telephone:<PHONE_NUMBER>; or Aaron Moore, Attorney, Office of
Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue
SE, W31-216, Washington, DC 20590, telephone:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Rulemaking Authority and Background
III. Summary of the Major Provisions of the Final Rule
    A. Continuous Rail Testing
    B. Removal of the High-Density Commuter Line Exception
    C. Incorporation of Flange-Bearing Frog and Heavy-Point Frog
Waivers
    i. Heavy-Point Frogs
    ii. Flange-Bearing Frog Crossing Diamonds
IV. Discussion of Comments and Conclusions
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Environmental Impact
    E. Executive Order 12898 (Environmental Justice)
    F. Federalism Implications
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact

I. Executive Summary

    Beginning in 2015, the Track Safety Standards Working Group (TSS
Working Group) of the Railroad Safety Advisory Committee (RSAC) met
numerous times to ``consider specific improvements to the Track Safety
Standards . . . designed to enhance rail safety by improving track
inspection methods, frequency, and documentation.'' On December 31,
2019, FRA published a Notice of Proposed Rulemaking (NPRM) that was
informed by the RSAC's recommendations and FRA's own review and
analysis of the Track Safety Standards (TSS or Standards) (49 CFR part
213). See 84 FR 72526. In the NPRM, FRA proposed to amend subparts A,
D, F, and G of the TSS to: (1) Allow for continuous rail testing, (2)
incorporate longstanding waivers related to track frogs,\1\ (3) remove
the exception for high-density commuter lines from certain track
inspection method requirements, and (4) incorporate several consensus-
based, RSAC recommendations. For a more in-depth discussion of the
proposals and their development, please see the NPRM (84 FR 72526).
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    \1\ A frog is a track component used at the intersection of two
running rails to provide support for wheels and passage for their
flanges, thus permitting wheels on either rail to cross the other
intersecting rail.
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    FRA analyzed the economic impact of this rule over a 10-year period
and estimated its costs and cost savings. If railroad track owners
choose to take advantage of the cost savings from this rule, they will
incur additional labor costs associated with continuous rail testing.
These costs are voluntary because railroad track owners will only incur
them if they choose to operate continuous rail testing vehicles. The
following table shows the net cost savings of this rule, over the 10-
year analysis.

                                          Net Cost Savings, in Millions
                                                 [2019 Dollars]
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                                                   Present value   Present value
                                                        7%              3%         Annualized 7%   Annualized 3%
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Costs...........................................          $27.44          $33.24           $3.91           $3.90
Cost Savings....................................          149.30          180.99           21.26           21.22
Net Cost Savings................................          121.86          147.75           17.35           17.32
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    This rule will result in cost savings for railroad track owners.
The cost savings are in the table below.

                                            Cost Savings, in Millions
                                       [Over a 10-year period of analysis]
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                                                   Present value   Present value
                     Section                            7%              3%         Annualized 7%   Annualized 3%
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Government Cost Savings.........................          $0.194          $0.229          $0.028          $0.027
Flange Bearing Frog Inspections.................           0.184           0.215           0.026           0.025
Frog Waiver Savings.............................           0.013           0.016           0.002           0.002

Continuous Testing Labor Cost Savings...........           7.452           9.034           1.061           1.059
Slow Orders.....................................         141.329         171.340          20.122          20.086
Continuous Testing Waiver Savings...............           0.132           0.157           0.019           0.018
                                                 ---------------------------------------------------------------
    Total.......................................         149.305         180.991          21.258          21.218
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    The table below presents the estimated costs, over the 10-year
analysis.

                                          Estimated Costs, in Millions
                                       [Over a 10-year period of analysis]
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                                               Present value    Present value
                                                     7%               3%         Annualized 7%    Annualized 3%
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Continuous Testing..........................           $27.4            $33.2             $3.9             $3.9
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II. Rulemaking Authority and Background

    On January 30, 2017, President Trump issued Executive Order (E.O.)
13771. E.O. 13771 seeks to ``manage the costs associated with the
governmental imposition of private expenditures required to comply with
Federal regulations'' and directs each executive department or agency
to identify for elimination two existing regulations for every new
regulation issued. E.O. 13771 also requires any new incremental cost
associated with a new regulation, to the extent permitted by law, be at
least offset by the elimination of existing costs associated with at
least two prior regulations.
    In response to E.O. 13771, FRA initiated a review of its existing
regulations with the goal of identifying regulations that it could
amend or eliminate to reduce the overall regulatory, paperwork, and
cost burden on entities subject to FRA jurisdiction. FRA identified
part 213 as a regulation FRA could amend and thereby reduce the
railroad industry's overall regulatory and cost burden while improving
rail safety. Also, in response to a DOT request for public comment on
existing rules ripe for repeal or modification, the Association of
American Railroads and other industry participants encouraged FRA to
revise part 213 to allow for the use of innovations in rail inspection
technology, specifically the use of non-stop rail inspection vehicles.
See docket number DOT-OST-2017-0069 (available online at
www.regulations.gov). This rule responds to those comments by providing
railroads with the flexibility to use continuous rail testing in a way
that will facilitate operational efficiency and enhance safety.
    Section 20103 of title 49 of the United States Code (U.S.C.)
provides that, ``[t]he Secretary of Transportation, shall prescribe
regulations and issue orders for every area of railroad safety.'' This
statutory section codifies the authority granted to the Secretary of
Transportation under the former Federal Railroad Safety Act of 1970.
The Secretary's authority to act under section 20103 is delegated to
the Federal Railroad Administrator. See 49 CFR 1.89.
    FRA published the first Standards on October 20, 1971. 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), which led to FRA issuing a final rule amending the Standards in
1998. See 63 FR 34029, June 22, 1998; 63 FR 54078, Oct. 8, 1998.
    As noted in the NPRM, this final rule is based, in part, on the
consensus recommendations of the TSS Working Group. Specifically, this
final rule implements the TSS Working Group's recommendations to remove
the high-density commuter line inspection-method exception and to
revise certain recordkeeping requirements and the qualification
requirements for certain railroad employees.

III. Summary of Major Provisions of the Final Rule

A. Continuous Rail Testing

    FRA sponsors railroad safety research, including research 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 maintenance practices that increase rail service life.
Generally, FRA's rail integrity research focuses on four distinct
areas: Analysis of rail defects; residual stresses in rail; strategies
for rail testing; and other related issues (e.g., advances in
nondestructive inspection techniques; feasibility of advanced materials
for rail, rail lubrication, rail grinding and wear; etc.). FRA's rail
integrity research is an ongoing effort, and is particularly important
as annual tonnages and average axle loads continue to increase on the
nation's railroads. For more discussion of rail integrity generally,
see FRA's 2014 final rule titled Track Safety Standards; Improving Rail
Integrity. 79 FR 4234, Jan. 24, 2014.
    One of the most important assets to the railroad industry is its
rail infrastructure. Historically, a primary concern of railroads has
been the probability of rail flaw development. Rail defects may take
many forms (e.g., rail head surface conditions and internal rail
flaws). If defects go undetected, they may grow to critical size,
potentially resulting in a broken rail and subsequent derailment.
Accordingly, to prevent rail defect development, railroads seek ways to
improve their rail

maintenance practices, install more wear-resistant rail, utilize
improved flaw-detection technologies, and increase rail inspection
frequencies.
    The development of internal rail defects is an inevitable
consequence of the accumulation and effects of fatigue under repeated
loading. The direct cost of an undetected rail defect that leads to a
rail failure is the cost of replacing the rail plus the cost of any
damage and other consequences that may result from the failure. Rail
failures can have widespread and catastrophic consequences (e.g.,
environmental damage and potential injury and loss of life, along with
significant service interruptions, and traffic rerouting). As such, the
cost of a rail failure is typically considerably more than the cost of
replacing the rail containing the defect before the rail actually
fails. The challenge for the railroad industry is to avoid the
occurrence of rail failures due to the presence of undetected defects.
    The effectiveness of a rail inspection program depends, in part, on
the test equipment being properly designed and capable of detecting
rail defects of a certain size and orientation reliably, and on
ensuring that the test frequencies allow for detection of defects
before they grow to critical size. High traffic and tonnage volumes can
accelerate defect growth, while at the same time decreasing the time
available for rail inspection. Additionally, these high volumes can
lead to rail surface fatigue that may impede the ability of test
equipment to detect an underlying rail flaw.
    Currently, track owners use four general rail flaw detection
methods, each of which requires human involvement to interpret the test
data. The four methods are:
     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;
     Stop-and-verify process, where a vehicle-based flaw
detection system tests at a slow speed (normally not exceeding 20 miles
per hour (m.p.h.)), gathering data that is presented to the operator on
a test monitor for interpretation and field verification;
     Chase car process, which consists of a lead test vehicle
performing the flaw detection process ahead of a verification chase
car; and
     Continuous test process, which is one of the subjects
addressed in this final rule, where a high-speed, vehicle-based, test
system runs non-stop along a designated route, the test data is
analysed at a centralized location, and suspect defect locations are
subsequently verified.
    The main technologies utilized for the processes listed above are
ultrasonic and induction methods. Ultrasonic technology is the primary
technology used, with induction technology currently used as a
complementary system. As with any non-destructive test method, these
technologies are susceptible to physical limitations that allow poor
rail head surface conditions (e.g., shelling or corrugation) to impair
the detection of rail flaws. Conditions, other than poor rail head
surface conditions (e.g., heavy lubrication or debris on the rail
head), can also limit the effectiveness of certain inspection
technologies.
    Induction testing introduces a high-level, direct current into the
top of the rail, 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 distorts the current flow and the magnetic
field, and it is this distortion that is detected by the search unit.
    Ultrasonic testing uses sound waves that propagate at a frequency
that is normally between 2.25 MHz (million cycles per second) to 5.0
MHz, above the range of human hearing. Ultrasonic waves are transmitted
into the rail by transducers 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 are
discontinuities in the material that constitutes the rail. These
discontinuities act as a reflector to the ultrasonic waves, a portion
of which are reflected back to the transducers. These conditions
include rail head surface conditions, internal and visible rail flaws,
weld upset/finish, and 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 test data record.
    FRA is amending its regulations on inspection of rail and
verification of indications of defective rail to allow for continuous
rail testing. See Sec.  213.240. The current regulations require
immediate verification of certain indications and require all others be
verified within 4 hours. 49 CFR 213.113(b). This verification timeframe
has made it practically impossible for track owners to conduct
continuous testing. Consistent with FRA's desire to improve rail safety
and encourage innovation that does the same, this rulemaking
establishes procedures that, except for indications of a broken rail,
extend the required verification timeframes for those entities that
adopt continuous testing. FRA expects this will facilitate operational
efficiency and encourage both a broader scope and more frequent use of
continuous rail testing in the industry.
    Although rail flaw detection is not an exact science, noncritical
rail flaw limits can be difficult to estimate, and numerous variables
affect rail flaw growth, FRA expects the procedures adopted in this
final rule are sufficient to ensure the extended verification
timeframes are unlikely to result in complete rail failure prior to
verification. Continuous rail testing is a process that has been
successfully trialed under the waiver process outlined in 49 CFR 213.17
on select rail segments on multiple railroads in the U.S. since
2009.\2\ This rulemaking codifies the continuous rail testing practices
FRA has permitted by waiver and allows for additional flexibility in
the rail inspection process. Track owners that do not desire to conduct
continuous rail testing are not required to do so.
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    \2\ See docket numbers FRA-2008-0111 (CSX), FRA-2011-0107 (CSX),
FRA-2014-0029 (CN), FRA-2015-0019 (NS), FRA-2015-0115 (KCS), FRA-
2015-0130 (BNSF), FRA-2018-0022 (UP), FRA-2018-0031 (LIRR), and FRA-
2019-0057 (MNCW) (available online at www.regulations.gov).
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    As explained in detail in the NPRM, the continuous rail test method
consists of a vehicle using ultrasonic testing, in some cases augmented
by other flaw detection systems, to detect defects in the rail. The raw
test data is transmitted from the vehicle to a centralized location to
be analyzed by a team of experts, using multiple advanced techniques,
including comparison to past data from the same location (sometimes
referred to as ``change detection''). Once analyzed, suspect locations
or ``indications'' (locations where the data indicates the possible
presence of a rail defect) are then transmitted back to the field for
on-site verification to determine if an actual rail flaw exists.
    Under Sec.  213.113(b), when a track owner learns that a rail
contains an indication of one of the defects listed in the Remedial
Action Table, the track owner must field-verify the indication within
four hours. As proposed, Sec.  213.240 would exempt track owners who
elect to utilize continuous rail testing from the requirement to field-
verify indications within four hours. Depending on the type and
severity of an indication, as proposed Sec.  213.240 would allow
railroads up to either 36 or 84 hours to field-verify the suspect
locations. (Once a suspect location is verified as a defect, however,
the

remedial action timelines in the Remedial Action Table would apply).
    As noted in the NPRM, the increased verification period is
justified by the logistical and safety benefits of continuous rail
testing. Because the test vehicle does not have to stop and verify each
suspected defect, more track can be inspected at greater speeds with
significantly less interruption to revenue service. The more time-
consuming analysis of the test data can be conducted off-site and
reviewed at an optimal speed not related to the speed of the test
vehicle. Additionally, the test data can be more thoroughly compared to
past test runs over the same section of track to better identify
possible defect propagation and growth. The decreased interruption to
revenue service allows track owners to test track more frequently. FRA
expects that continuous rail testing would substantially decrease the
overall cost to the railroad industry while improving rail safety.
    As noted in section IV.A of the NPRM (see 84 FR 72528-30), since
2009, a number of railroads have implemented continuous rail testing
programs through limited, conditional waivers of Sec.  213.113(b). As
discussed above, Sec.  213.113(b) requires track owners who learn that
a rail in their track contains an indication of a defect listed in the
Remedial Action Table to verify the indication within four hours and
take remedial action in accordance with the Remedial Action Table. The
Remedial Action Table prescribes the required remedial actions (and
timelines for taking those actions) based on the severity of the
defects identified. In other words, there is a built-in safety
threshold in the Remedial Action Table for each known defect depending
on the defect type and size. Generally, the waivers FRA has granted to
date allowing railroads to conduct continuous rail testing programs
provide a longer period of time to verify indications of defects than
permitted by Sec.  213.113(b), thereby allowing the railroads to
prioritize the verification of those defects based on the severity of
the indications identified.
    Under the existing waivers, suspect locations are not prioritized
arbitrarily, but are categorized based on the ultrasonic reflective
responses viewed by the analyst. In other words, analysts interpret the
collected ultrasonic reflective responses, estimate each indication
type and size, and, based on that estimate, categorize the suspect
locations in terms of severity and remedial action required by the
Remedial Action Table (typically suspect locations are categorized as
``priority one,'' ``priority two,'' or ``priority three''). Priority
one indications are suspected locations above the threshold that, if
verified as a defect, would require remedial action note ``A,'' ``A2,''
or ``B'' under the Remedial Action Table. Thus, as proposed, these
suspect locations must be field-verified within the timeframe listed in
Sec.  213.240(e)(2).
    Those suspected locations that, if verified as a defect, would not
require either remedial action ``A,'' ``A2,'' or ``B'' must be field-
verified within the timeframe listed in Sec.  213.240(e)(1), and are
commonly referred to in the industry as either ``priority two'' or
``priority three'' indications, depending on the clarity of the
indication. Often, when the ultrasonic test data produces a response
where the analyst believes a defect is present because of the strength
of the ultrasonic reflective signal, but that signal does not indicate
a suspect defect of the type and/or size requiring remedial action
``A,'' ``A2,'' or ``B,'' the track owner lists the indication as a
priority two. All other suspect locations identified by the analyst as
potential defects or questionable ultrasonic responses are often marked
as priority three suspect locations by the track owner. These so-called
``priority threes'' are indications where the ultrasonic reflective
data does not produce a clear indication of defect type or size, but
produces an unfamiliar or questionable response. Because many variables
affect ultrasonic responses, the priority three suspect type is the
most commonly indicated, requiring hand-verification to check that
location to ensure nothing is being missed or misinterpreted that might
result in a rail failure and subsequent derailment.
    The Remedial Action Table reflects the fact that all verified
defects pose a potential risk of sudden failure, depending on the
conditions, even with defects deemed to be less severe than others.
Data from the existing waivers demonstrates that, although less than
two percent of the priority three suspect locations are found to be
actual rail defects, priority three suspect locations account for
approximately 85 percent of the field-verified defects found as a
result of continuous testing. Priority one and priority two suspect
locations are found to be actual rail defects in approximately 95-99
percent and 65-70 percent of the cases, respectively. Thus, although
priority three suspect locations have a much higher probability of a
false positive, they are also by far the most common indication of an
actual defect. Accordingly, FRA finds that safety necessitates
continuing to require the field verification of all defects identified
by tests carried out under Sec.  213.237 or Sec.  213.239.
    Further, FRA is providing additional flexibility in the rail flaw
detection processes to promote innovative approaches to improving
safety in railroad operations. Section 213.240 provides track owners
the option to conduct continuous rail testing to satisfy the rail
inspection requirements in Sec.  213.237 or, where applicable, Sec.
213.339. This section allows additional time for verification of
indications of potential rail flaws identified through continuous
testing. This additional time allows for improvements in planning and
execution of rail inspections and rail defect remediation, enabling
track owners to conduct rail inspections with smaller impacts on
railroad operations. By reducing these impacts, more track time may
become available to conduct inspections and maintenance.
    However, as continuous testing is a more complicated process
compared to the traditional stop-and-verify rail inspection process,
additional criteria have been adopted to ensure that this elective
process is conducted in a manner that is in the interest of safety,
with sufficient recordkeeping and transparency to allow for adequate
FRA oversight. The continuous rail test section would not modify the
required frequency of rail inspections or the applicable procedural
requirements as set forth in Sec. Sec.  213.237 and 213.339, nor does
it make any change to the remedial actions required after field
verification of a rail defect as described in Sec.  213.113(c).

B. Removal of the High-Density Commuter Line Exception

    FRA is removing what is commonly referred to as the ``high-density
commuter line exception'' from the track inspection requirements in
Sec.  213.233. This exception applies to ``high density commuter
railroad lines where track time does not permit on-track vehicle
inspection and where track centers are 15 feet or less apart'' and
exempts those operations from 49 CFR 213.233(b)(3). Section
213.233(b)(3) requires each main track to be traversed by vehicle or
inspected on foot at least once every two weeks and each siding at
least once each month. Although other provisions of Sec.  213.233 do
require that such track be inspected, Sec.  213.233(b)(3) focuses on
the direct manner of conducting those inspections over or on the
subject track.
    On May 17, 2013, Metro-North Commuter Railroad (Metro-North)
passenger train 1548 was traveling eastbound from Grand Central
Station,

New York, toward New Haven, Connecticut, when it derailed in
Bridgeport, Connecticut, and was struck by westbound Metro-North
passenger train 1581. The accident resulted in approximately 65
injuries and damages estimated at over $18 million. During the
investigation, a pair of broken compromise joint bars were found at the
point of derailment. One of those broken joint bars was located on the
gage side of the track over which train 1548 was traveling (main track
4). NTSB's investigation also found that Metro-North last inspected the
track in the area two days before the accident, but the inspection was
conducted by an inspector in a hi-rail vehicle traveling on main track
2, which was next to main track 4, and the joint bars in question would
not have been visible during that inspection. See NTSB's Railroad
Accident Brief, October 24, 2014, available at https://www.ntsb.gov/investigations/AccidentReports/Reports/RAB1409.pdf.
    In response to the Bridgeport accident, NTSB issued Safety
Recommendation R-14-11 to FRA, which recommended that FRA revise the
Standards, specifically Sec.  213.233(b)(3), to remove the high-density
commuter line exception.
    Subsequently, in 2015, Congress passed the FAST Act, and mandated
in section 11409 that the Secretary of Transportation evaluate the
Standards to determine if the high-density commuter line exception
should be retained. After considering safety, system capacity, and
other relevant factors such as the views of the railroad industry and
relevant labor organizations, FRA has concluded, and the TSS Working
Group unanimously agreed, that the high-density commuter line exception
should be removed. All railroad operations, whether commuter or
freight, or both, should be subject to the same inspection method
requirements in Sec.  213.233(b)(3).

C. Incorporation of Flange-Bearing Frog and Heavy-Point Frog Waivers

    FRA is revising two sections of part 213 (Sec. Sec.  213.137 and
213.143) to incorporate longstanding waivers that, with certain
limiting conditions, permit the use of flange-bearing frogs and heavy-
point frogs that do not comply with current FRA standards. FRA finds
that under certain conditions, use of these types of frogs provide
safety benefits by more evenly distributing loads across the frogs with
minimal impact to rail surfaces, as compared to other types of rail
frogs. Incorporating these waivers into FRA's regulations will result
in industry cost savings that are larger than the cost savings that
result from the waivers alone.
i. Heavy-Point Frogs
    A heavy-point frog (HPF) is a unique design that has a thicker frog
point than a traditional frog. A thicker frog point provides more inert
mass, which results in reduced metal fatigue from impact loading,
greater durability, reduced susceptibility to deformation of the frog
point, and better ability to guide the wheel flange toward the proper
flangeway. In an HPF, the gage line is \11/32\ (0.3438) of an inch
thicker than a traditional, rail-bound manganese frog point. This
reduces the standard guard check distance from 4 feet, 6\5/8\ (54.6250)
inches to 4 feet, 6\29/64\ (54.4531) inches, which does not comply with
minimum guard check distance for Class 5 track.
    As defined in 49 CFR 213.143, and as shown in Figure 1 below, guard
check gage is the distance between the gage line of a frog to the guard
line (a line along the side of the flangeway nearest to the center of
the track and at the same elevation as the gage line) of its guard rail
or guarding face, measured across the track at right angles to the gage
line (a line \5/8\ of an inch below the top of the center line of the
head of the running rail, or corresponding location of the tread
portion of the track structure).
    The purpose of the minimum guard check gage is to ensure a
vehicle's wheels are able to pass through the frog without one of the
wheels (the right wheel in Figure 1) striking the frog point. In Figure
1, there are two key dimensions: ``wheel check,'' which is the distance
between the two wheels plus the wheel flange thickness at the gage line
(\5/8\ of an inch below the running surface); and ``guard check gage,''
which is defined above. As illustrated in Figure 1, guard check gage
must be greater than or equal to the wheel check so there will be a
``flange-frog point gap'' between the right wheel and frog point
interface, when the left wheel flange passes against the guard rail. As
stated above and further illustrated in Figure 1, this ensures the
right wheel does not strike the frog point.
    Figure 1 depicts a standard frog, which has a standard guard check
gage of 54.625 inches, meeting the requirement for Class 5 track
(greater than or equal to 54.5 inches). A heavy-point frog has a
standard guard check gage of 54.4531 inches, which does not meet
current FRA standards for Class 5 track but does meet the current
standards for Class 4 track (greater than or equal to 54.375 inches).

[GRAPHIC] [TIFF OMITTED] TR07OC20.002

    In 2003, FRA approved a waiver permitting operation of trains at
Class 5 track speeds over certain HPFs at which the guard check gage,
under existing 49 CFR 213.143, conforms to the standards applicable to
Class 4 track. See docket number FRA-2001-10654 (available online at
www.regulations.gov). Among other conditions to ensure safety, the
waiver requires that the frog, and the guard rails on both tracks
through the turnout containing the frog, be equipped with at least
three through-gage plates (metal plates underneath the frog that expand
across the entire frog to provide both vertical support and lateral
restraint for the frog components) with elastic rail fasteners, and
guard rail braces that permit adjustment of the guard check gage
without removing spikes or other fasteners from the crossties. The
waiver also requires that track owners retain records of the location
and description of each turnout containing an HPF, notify FRA prior to
operating trains over a new HPF, and provide proper information and
training to any employees designated to inspect or supervise
restoration or renewal of areas containing an HPF. The waiver also
requires that each HPF bear an identifying mark. Since FRA initially
granted the waiver in 2003, FRA has renewed the waiver three times,
most recently on February 15, 2018. The waiver is currently set to
expire on February 15, 2023.
    To date, no accidents have been reported to FRA as having occurred
at or near locations where HPFs are installed. Accordingly, FRA finds
that the safety of HPFs have been proven. As discussed in more detail
below in the section-by-section analysis for Sec.  213.143, FRA is
incorporating some of the waiver provisions into the regulation.
ii. Flange-Bearing Frog Crossing Diamonds
    Flange-bearing frogs (FBF) are different from the traditional
tread-bearing frogs used by freight railroads in most crossing diamonds
and turnouts in the United States. In traditional tread-bearing
crossing diamonds, a vehicle's wheels must run over the gaps in the
running rails. This creates very high impact forces between the wheels
and rails, which can damage both the diamond and components of the
vehicle (e.g., the vehicle's wheels and axles). For FBFs, the flangeway
is designed to support the wheels running on their flanges. Ramps
provide a smooth transition from tread-bearing to flange-bearing and
reduce the dynamic wheel forces significantly. This can greatly reduce
noise and vibration, increase the service life of crossing diamonds and
vehicle components, reduce the need for maintenance, and possibly
decrease the need for speed restrictions due to worn, damaged, or
defective crossing diamonds.
    In 2000, FRA approved a waiver granting relief from the flangeway
depth requirements in 49 CFR 213.137(a) as well as the limitation in 49
CFR 213.137(d) restricting FBFs to Class 1 track. See docket number
FRA-1999-5104 (available online at www.regulations.gov). Among other
conditions, this initial waiver allowed track owners to install up to
five FBF crossing diamonds in Class 2 or 3 track. FRA limited its
initial approval to five FBF crossings under specific operational
conditions and conditions requiring vehicle and track inspections
designed to closely monitor the performance of the FBFs. In 2010, based
on the successful implementation of the initial waiver and data
gathered as a result, at industry's request, FRA granted a revised
waiver allowing installation of FBF crossing diamonds on Classes 2
through 5 track with crossing angles above 20 degrees unless movable
guard rails are used. Among other conditions, the waiver required that
newly installed FBF crossing diamonds be inspected daily during the
first week of operation, weekly for the month after, and monthly
thereafter. The waiver also required the track owner to prepare
maintenance manuals and properly train its personnel. The waiver was
renewed in May 2020, and is set to expire in May 2025.
    To date, no accidents have been reported to FRA as having occurred
at or near FBFs. Accordingly, FRA finds that the safety benefits of
FBFs have been proven and incorporates some of the waiver provisions
into the regulation. Because the performance of the FBF crossing
diamonds installed under the waiver is the primary basis for FRA's
conclusion that these frogs are safe, FRA finds that it is in the best
interests of public safety to retain, as

much as reasonable, similar limitations imposed under the waiver.

IV. Discussion of Comments and Conclusions

    FRA received six sets of comments in response to the NPRM. Three
sets of comments were from RSAC members and included comments from the
National Transportation Safety Board (NTSB), joint comments submitted
from the Association of American Railroads (AAR) and the American Short
Line and Regional Railroad Association (ASLRRA) (jointly referred to as
``AAR/ASLRRA''), and joint comments from the Brotherhood of Maintenance
of Way Employes Division (BMWED) and the Brotherhood of Railroad
Signalmen (BRS) (jointly referred to as ``BMWED/BRS''). FRA also
received comments from Herzog Service, Inc., and the American
Association for Laboratory Accreditation (A2LA). Finally, FRA received
a joint comment from the following seven entities: The American
Chemistry Council, the American Fuel & Petrochemical Manufacturers, the
American Petroleum Institute, the Chlorine Institute, the Fertilizer
Institute, the Renewable Fuels Association, and the Sulphur Institute
(collectively referred to as the ``Chemical, Energy, and Agricultural
Trade Associations'').
    FRA thanks the commenters for the time and effort put into each of
the comments received. Directly below FRA discusses the comments
generally applicable to this rulemaking. Comments directed at specific
proposed regulatory changes are discussed below in the section-by-
section analysis. The order in which FRA discusses the comments below
is not meant to imply that FRA is prioritizing one commenter over
another. Rather, FRA has organized the discussion of comments in as
logical manner as possible.

BMWED/BRS

    In their comment, BMWED/BRS raised a number of concerns with the
NPRM, primarily regarding the proposal to allow for continuous rail
testing. Although many of BMWED/BRS's concerns are discussed below in
the section-by-section analysis, they recommend that certain additional
conditions, not proposed in the NPRM, be required for continuous rail
testing. BMWED/BRS assert that suspect locations containing a suspect
defect that, if verified, would require remedial action A, A2, or B
identified in the Remedial Action Table contained in Sec.  213.113(c)
(Remedial Action Table), as well as indications of a ``possible
transverse defect estimated to be greater than 25%,'' should require
immediate protection. Additionally, BMWED/BRS contend that the Remedial
Action Table should be revised for continuous rail testing.
Specifically, BMWED/BRS state that ``the number of days/hours in the
Remedial Action Table'' should be reduced to ``accommodate the
additional 36 to 84 hours for `field verification' . . . in order to
maintain an equivalent level of safety.'' A proposed revised Remedial
Action Table was attached to BMWED/BRS's comment. Finally, BMWED/BRS
recommend that FRA require railroads ``opting to use [continuous rail
testing] under proposed Sec.  213.240 to at least double the frequency
of inspections on each track segment.''
    FRA disagrees that these changes are needed or justified. As
discussed in more detail in the NPRM (see 84 FR 72528-30), continuous
rail testing has been successfully trialed under the waiver process on
select rail segments on multiple railroads in the United States since
2009. The data derived and the lessons learned from over 10 years of
testing do not support the additional conditions proposed in BMWED/
BRS's comment. Continuous rail testing has the potential to improve
rail safety significantly and FRA is confident that Sec.  213.240, as
adopted in this final rule, successfully balances the flexibility
needed to conduct continuous rail testing with conditions necessary to
ensure at least an equivalent level of safety, and very likely improve
it. FRA also finds that adopting the additional conditions proposed by
BMWED/BRS would be a significant and unjustified disincentive to track
owners' and railroads' use of continuous testing. Adopting such
conditions could make continuous rail testing more onerous than
traditional stop-and-verify testing (e.g., by doubling the required
number of inspections, requiring immediate protections for certain
defects before field verification, and decreasing existing timeframes
for imposing remedial action)--all of which could result in track
owners and railroads forgoing adoption of continuous testing, and
therefore, the associated safety benefits discussed throughout this
final rule.
    Additionally, BMWED/BRS advocate for an interpretation of existing
Sec.  213.5(a) and how it relates to a suspect location found during a
rail inspection. BMWED/BRS assert that ``delayed application of the
Remedial Action Table for suspect rail defects'' violates Sec.
213.5(a) since once ``suspected defects are identified, the carrier
`knows or has notice' that the track does not comply with the
requirements of Part 213.'' BMWED/BRS contend that ``[a]ll suspected
rail defects must first be protected and then `verified.' '' FRA does
not agree that this interpretation of Sec.  213.5(a) is consistent with
regulatory language or longstanding FRA interpretation. An indication
of a suspect defect is only that: An indication that a defect might
exist. The track owner does not have knowledge or notice of an actual
defect until the suspected defect is field-verified and confirmed to be
a defect. This long-held interpretation is consistent with the
structure of Sec.  213.113.
    Section 213.113(a) lists the actions a track owner must take when
the owner ``learns that a rail in the track contains any of the defects
listed in the table contained in paragraph (c),'' whereas Sec.
213.113(b) lists the actions a track owner must take when the owner
``learns that a rail in the track contains an indication of any of the
defects listed in the table contained in paragraph (c).'' Thus, the
plain language of the regulation makes clear that an indication of a
defect is not the same as a verified defect and thus Sec.  213.5(a)
would not require immediate remediation for an unverified indication of
a defect.
    Finally, BMWED/BRS state that ``FRA must assure that all verified
defects be marked with a highly visible marking in compliance with
Sec.  213.237(e) or Sec.  213.339(c) as appropriate.'' FRA notes that
this is already required by Sec. Sec.  213.237(e) and 213.339(c), and
this final rule does not change that.

AAR/ASLRRA

    In addition to comments directed at specific, proposed regulatory
provisions, which are discussed below in the section-by-section
analysis, AAR/ASLRRA raise a concern about training and qualification
provisions. Specifically, AAR/ASLRRA contend that 49 CFR part 243,
which was originally issued in 2014 but had its effective date delayed
multiple times, ``generally made obsolete the previous need to codify
scattershot training provisions throughout the Federal railroad safety
regulations,'' and that any ``references to training and qualification
in the final rule [are] unnecessary and duplicative.'' FRA disagrees.
As Sec.  243.1 expressly states, part 243 contains the general minimum
training and qualification requirements for each category and
subcategory of safety-related railroad employee (Sec.  243.1(b)), and
the requirements of part 243 do not exempt any other requirements in
this chapter (Sec.  243.1(c)). Further, unless otherwise noted, part
243 augments other training and

qualification requirements contained in this chapter (Sec.  243.1(d)).
The clear wording of part 243 shows that training and qualification
requirements codified in other parts of the CFR are not obsolete or
duplicative.

A2LA

    A2LA, in its comment, generally favors utilizing International
Organization for Standardization/International Electrotechnical
Commission (ISO/IEC) accreditation for multiple areas of part 213,
including requiring continuous rail testing be done by ISO/IEC
accredited inspection agencies, adopting ISO/IEC standards for
qualification requirements, and adopting ISO/IEC accreditation for
track inspections. FRA does not believe ISO/IEC standards are necessary
for purposes of this final rule. The qualification requirements already
included in part 213 and adopted in this final rule, along with
continued FRA oversight, are sufficient to ensure railroad personnel
conducting relevant tasks are properly trained and possess the
requisite skills to complete their jobs safely and effectively.

Chemical, Energy, and Agricultural Trade Associations

    The Chemical, Energy, and Agricultural Trade Associations ``support
allowing inspection of rail using continuous rail testing,'' but raise
a general concern ``that the proposed revisions, particularly the
extension of the verification timeframes could lead to a scenario where
fatal flaws remained unaddressed and subject trains to potential
derailments.'' The Associations go on to ``caution FRA from
implementing an overly extended verification timeframe and encourage a
conservative approach when considering what is a critical flaw
requiring immediate attention.'' FRA appreciates the Associations'
concerns. However, FRA is confident that the procedures governing
continuous rail testing and the extension of field verification
timeframes are sufficient to ensure railroad safety. Since 2009,
various continuous rail testing procedures and timeframes have been
trialed and fine-tuned through the waiver process on multiple
railroads. Waiver data indicates that as track owners have increased
their use of continuous rail testing under the waivers, they have
realized a decrease in broken-rail-caused accidents and an increase in
overall safety. For example, Norfolk Southern Railway, which began
operating under a continuous test waiver on limited territories in 2015
and since that time has expanded its continuous test territory numerous
times, experienced 34 percent fewer main line service failures (broken
rails that do not result in an accident) in 2018 as compared to 2014.
Similarly, CSX Corporation, which has been piloting continuous test
technologies and methodologies under an FRA waiver since 2009 and,
similar to NS, has expanded its continuous test territories numerous
times, had zero broken rail-caused main track accidents in 2019. FRA
safety data demonstrates a nationwide 39 percent reduction in FRA
reportable broken rail caused accidents from June 2019 to May 2020. In
addition, since beginning continuous rail testing under waiver in 2018,
the Long Island Railroad (LIRR) has tripled its testing frequency with
no additional train delays. This final rule is based on the data and
experience gained through those waivers.

V. Section-by-Section Analysis

Section 213.1 Scope of Part

    Proposed rule: Section 213.1 sets forth the scope of part 213.
Paragraph (b) specifies that subparts A through F of part 213 apply to
track Classes 1 through 5 and that subpart G and certain individual
sections of subpart A apply to track Classes 6 through 9. FRA proposed
to amend paragraph (b) of this section to reference proposed Sec.
213.240 (continuous rail testing). Together with proposed Sec.
213.240, this change would allow track owners to elect to use
continuous rail testing conducted under Sec.  213.240 on Class 6
through Class 9 track to satisfy the requirement for internal rail
testing under Sec.  213.339.
    Comments: FRA received no comments on this proposed change.
    Final rule: The change is adopted as proposed in the NPRM.

Section 213.5 Responsibility for Compliance

    Proposed rule: Section 213.5 specifies the parties responsible for
compliance with part 213. Paragraph (a)(3) of this section addresses
persons responsible for overseeing operations over track that is known
to be not in compliance with part 213. That paragraph requires
operations over such track to be overseen by a person designated under
Sec.  213.7(a) who has ``at least one year of supervisory experience in
railroad track maintenance.'' FRA proposed to remove the requirement
for the person overseeing operations on non-compliant track to have
``one year of supervisory experience in railroad track maintenance.''
This proposed change would conform to the proposed changes to Sec.
213.7, which are discussed below.
    Additionally, FRA proposed to add the following sentence to the end
of paragraph (a)(3): ``If the operation is on Continuous Welded Rail
(CWR) track, the person under whose authority operations are conducted
must also be designated under Sec.  213.7(c).'' This change is meant to
clarify that in order for a person to authorize operations over CWR
track that does not meet all the requirements of part 213, the person
must be designated and qualified by the track owner under Sec.
213.7(c) to inspect CWR track or supervise the installation,
adjustment, and maintenance of CWR track.
    Comments: FRA received no comments on these proposed changes.
    Final rule: The changes are adopted as proposed in the NPRM.

Section 213.7 Designation of Qualified Persons To Supervise Certain
Renewals and Inspect Track

    Proposed rule: Section 213.7 requires track owners to designate
qualified persons to inspect track and supervise certain track
restorations and renewals, and specifies the records related to these
designations a track owner must maintain. The section also requires
these qualified persons to have ``written authorization'' from the
track owner to prescribe remedial actions to address identified
nonconformities in the track.
    Paragraph (a)(1) of this section specifically requires that a
person designated to supervise the restoration and renewal of track
under traffic conditions have, among other things, either one year of
supervisory experience in railroad maintenance or a combination of
supervisory experience in track maintenance and training. For the
reasons discussed in the NPRM, and consistent with the recommendations
of the TSS Working Group, FRA agreed that requiring supervisory
experience to qualify under paragraph (a)(1) creates a possible
conflict in the regulatory language (an employee cannot be qualified
under that paragraph unless he or she has supervisory experience yet an
employee would not be able to gain supervisory experience without first
being qualified). Accordingly, FRA proposed to remove the supervisory
requirement in the paragraph.
    Paragraphs (a)(3), (b)(3), (c)(4), and (e) each require ``written''
records. The records required in paragraphs (a)(3), (b)(3), and (c)(4)
relate to individual's authorization from a track owner to prescribe
remedial actions. The records required in paragraph (e) relate to the
designation of individuals authorized to prescribe such actions. As
noted in the NPRM, FRA finds that the term ``written'' can be
interpreted to

encompass both physical hardcopies or electronic versions of the
required authorizations or designations. To avoid any possible
confusion and consistent with the TSS Working Group's recommendations,
FRA proposed to remove the term ``written'' from each of these
paragraphs to make clear that the required authorizations or
designations could be recorded and conveyed either in hardcopy or
electronic form.
    FRA also proposed to add new paragraph (e)(2) to require records of
designations under Sec.  213.7 to include the date each designation is
made. To incorporate this revision, FRA proposed to redesignate
paragraph (e)(2) as paragraph (e)(3). FRA also proposed to revise the
resulting new paragraph (e)(3) to require the records to contain not
only the basis for each designation as paragraph (e)(2) currently
requires, but also to require track owners to include the method used
to determine that the designated person is qualified. FRA intended this
change to better conform the section with the requirements of Sec.
213.305(e) for high-speed operations, and better describe what FRA
means by the ``basis for each designation.'' As noted in the NPRM, to
meet this requirement, a track owner could include information about
the nature of any training courses the designated person participated
in and how the track owner determined that the designated person
successfully completed the course (e.g., test scores, demonstrated
proficiency, etc.).
    Paragraph (e)(3) also requires designation records under Sec.
213.7 to include records of track inspections ``made by each designated
qualified person.'' FRA proposed to remove the requirement, finding it
redundant with Sec.  213.241's requirement that track owners maintain
records of track inspections made by qualified inspectors that are
``kept available for inspection and copying by [FRA] during regular
business hours.'' Accordingly, FRA proposed to redesignate paragraph
(e)(3) as new paragraph (f). FRA also proposed rephrasing the paragraph
to require that FRA make its request for records during normal business
hours and provide the track owner ``reasonable notice'' before
requiring production. As explained in the NPRM, the meaning of the term
``reasonable notice'' depends on the specific facts of each situation
and FRA does not intend these revisions to substantively change
recordkeeping requirements or FRA's existing inspection practices.
These revisions are primarily intended to clarify how FRA currently
enforces the regulation.
    Comments: With regard to the proposed introduction of the phrase
``reasonable notice'' in new proposed paragraph (f), AAR/ASLRRA, in
their comment, state that ``what constitutes `reasonable notice' is
inherently subjective'' and assert that ``a railroad acting in good
faith to provide requested records to FRA representatives upon
`reasonable notice' should never be subject to civil penalties.''
Alternatively, AAR/ASLRRA suggest that FRA adopt ``a presumptive ten
days' notice requirement.''
    Final rule: As explained above and in the preamble to the NPRM, the
term ``reasonable notice'' depends on the specific facts of each
situation (e.g., time of day request made, day of the week request
made, number of records requested). FRA does not agree that it is
appropriate to adopt a blanket statement that a railroad can never be
subject to civil penalties so long as it acts in ``good faith.'' The
subjective intent behind a railroad's actions is not a necessary
consideration for whether it complies with the requirement to produce
records. Likewise, FRA declines to adopt a blanket 10 days' notice
requirement. Although current Sec. Sec.  213.241(b) and 213.369(b)
include a reference to a 10 days' notice for track inspection records,
that only applies to paper records that are not maintained at the
designated location where they are requested. Electronic records or
those paper records maintained at the designated location where they
are requested are not subject to the automatic 10 days' notice
requirement under current Sec. Sec.  213.241(b) and 213.369(b). FRA
received no other comments on the proposed revisions to this section.
Accordingly, the revisions to Sec.  213.7 are adopted as proposed in
the NPRM.

Section 213.9 Classes of Track: Operating Speed Limits

    Proposed rule: Section 213.9 sets forth the maximum allowable
operating speeds for both passenger and freight trains for excepted
track, and track Classes 1 through 5 (track speeds up to 90 m.p.h. for
passenger trains and up to 80 m.p.h. for freight trains). Paragraph (b)
of this section addresses situations in which a track segment does not
meet the requirements for its intended class and specifies that if a
segment of track does not at least meet the requirements for Class 1
track, operations may continue under the authority of a person designed
under Sec.  213.7(a) ``who has at least one year of supervisory
experience in railroad track maintenance'' for up to 30 days.
Consistent with the revisions proposed to Sec.  213.7(a) discussed
above, FRA proposed to revise this paragraph to remove the requirement
that a person designated under Sec.  213.7(a) have a least one year of
``supervisory'' experience in railroad track maintenance. Please see
the above discussion of Sec.  213.7(a).
    Comments: FRA received no comments on this proposed change.
    Final rule: The change is adopted as proposed in the NPRM.

Section 213.11 Restoration or Renewal of Track Under Traffic Conditions

    Proposed rule: Section 213.11 requires operations over track
undergoing restoration or renewal under traffic conditions and not
meeting all the requirements of part 213 to be conducted under the
continuous supervision of a person designated under Sec.  213.7(a) with
``at least one year of supervisory experience in railroad track
maintenance.'' Consistent with the proposed changes to Sec.  213.7(a),
FRA proposed to remove the requirement that the person supervising
restoration or renewal of track under traffic conditions have a minimum
of one year of ``supervisory'' experience in track maintenance.
Additionally, to clarify an existing regulatory requirement, FRA
proposed to add text stating that if the restoration or renewal is on
continuous welded rail (CWR) track, the person must also be qualified
under Sec.  213.7(c).
    To clarify that a person designated under Sec.  213.7(a), and (c)
if applicable, may not authorize movement over any track not meeting
all the requirements of part 213 for its particular class, FRA also
proposed adding a sentence stating that the ``operating speed cannot be
more than the maximum allowable speed under Sec.  213.9 for the class
of track concerned.''
    Comments: FRA received no comments on the proposed changes.
    Final rule: The changes are adopted as proposed in the NPRM.

Section 213.113 Defective Rails

    Proposed rule: Section 213.113 prescribes the required actions a
track owner must take when it learns that a rail contains an indication
of a defect and after the track owner verifies the existence of the
defect. To clarify that the requirement that an indication of a defect
be verified within four hours would not apply if a track owner elects
to conduct continuous testing under proposed Sec.  213.240, FRA
proposed to modify the second sentence in paragraph (b) so that it
would begin with ``except as provided in Sec.  213.240, . . . .''
    Comments: FRA received no comments on this proposed change.

    Final rule: The change is adopted as proposed in the NPRM.

Section 213.137 Frogs

    Proposed rule: Section 213.137 contains the standards for use of
frogs. As discussed in detail in the preamble to the NPRM, a frog is a
track component used at the intersection of two running rails to
provide support for wheels and passage for their flanges, thus
permitting wheels on either rail to cross the other intersecting rail.
See 84 FR 72530.
    Paragraph (a) of Sec.  213.137 prescribes limits on the flangeway
depth of a frog. These limits effectively prohibit the use of flange
bearing frogs (FBFs) on Classes 2 through 5 track. However, since 2000,
railroads have operated under a waiver that allowed the installation of
FBFs in crossing diamonds in track Classes 2 through 5, and exempted
those diamonds from the flangeway depth requirements of paragraph (a),
subject to certain conditions. As discussed in more detail in section
IV.C of the NPRM (see 84 FR 72530-32), FRA has renewed the waiver
multiple times, and currently the waiver is set to expire in May 2025.
    After careful review of safety performance under the waiver and
analysis of track-caused derailments, as noted in the NPRM, FRA has
identified no negative safety implications with the use of FBFs. As
such, in the NPRM, FRA proposed to modify Sec.  213.137 by adding
paragraph (e) that would allow the use of FBFs in crossing diamonds in
Classes 2 through 5 track consistent with the conditions of the
existing waiver. The existing waiver limited the installation of FBFs
to locations with crossing angles above 20 degrees unless moveable
guard rails are used and generally required track owners to initially
inspect newly installed FBFs more often than traditional frogs. The
waiver also required track owners to document certain information about
the location of the installed FBFs (e.g., crossing angle, tonnage,
speed, direction and type of traffic), develop maintenance manuals
specific to the frogs, and properly train all personnel responsible for
inspecting or repairing any FBF. See proposed paragraphs (e)(1)-(3).
    Comments: FRA received comments generally supporting the proposed
changes. AAR/ASLRRA, while strongly supporting the incorporation of the
longstanding waiver for FBFs, disagreed with FRA's proposal to include
``many of the same administrative and recordkeeping provisions found in
the'' waiver. AAR/ASLRRA contend that those additional administrative
requirements ``are no longer necessary or relevant once FRA has
determined the new technology is safe.''
    Final rule: FRA agrees with AAR/ASLRRA's statement that the
administrative requirements imposed as conditions of the waiver are no
longer necessary given that the use of FBF's as proposed has been
proven safe, and the regulations already require track owners to
provide employees responsible for inspecting or repairing FBFs to be
appropriately trained and demonstrate appropriate knowledge,
understanding, and ability to do so. Accordingly, FRA is not adopting
proposed paragraphs (e)(2) and (e)(3). FRA, however, is maintaining the
requirement from proposed paragraph (e)(1) that FBFs may only be used
at locations with crossing angles greater than 20 degrees unless
movable guard rails are used. As noted in the NPRM, when a crossing
diamond has a smaller crossing angle, there is a heightened risk of
damage to the rail head when the wheel flange crosses over it.
    Because FRA is not adopting proposed paragraphs (e)(2) and (e)(3),
FRA is including the language proposed for paragraph (e)(1) at the end
of new paragraph (e). The changes proposed in the NPRM are otherwise
adopted, with the revisions discussed above.

Section 213.143 Frog Guard Rails and Guard Faces; Gage

    Proposed rule: This section prescribes a minimum and maximum value
for guard check and guard face gages, respectively. Guard check gage is
the distance between the gage line of a frog and the guard line of its
guardrail or guarding face. Allowable minimum dimensions vary with
track classification, i.e., train speed.
    As discussed in more detail in section IV.C of the NPRM (see 84 FR
72530-32), in 2003, FRA granted a waiver (docket number FRA-2001-10654)
to members of the railroad industry allowing operation of trains at
Class 5 speeds over a heavy-point frog (HPF) with guard check gage
conforming to the standards for Class 4 track frogs. FRA granted
several extensions of this waiver, and it is currently set to expire in
February 2023.
    After careful review of safety performance under the waiver and
analysis of track-caused derailment data, FRA identified no negative
safety implications with the use of HPFs under the conditions outlined
in the waiver. As such, in the NPRM, FRA proposed to modify Sec.
213.243 to add footnote 3 to the table in Sec.  213.143 which,
consistent with the conditions of the waiver, would: (1) Allow the
guard check gage for HPFs on Class 5 track to be less than the current
4-foot, 6\1/2\-inch minimum, but not less than 4 feet, 6\3/8\ inches
(the current minimum for frogs in Class 4 track); (2) require that each
track owner maintain records of the location and description of each
HPF and make that information available to FRA upon request during
normal business hours following reasonable notice; (3) require that
each HPF and the guard rails on both rails through the turnout be
equipped with at least three serviceable through-gage plates with
elastic rail fasteners and guard rail braces that permit adjustment of
the guard check gage without removing spikes or other fasteners from
the crossties; (4) require that each track owner provide proper
maintenance manuals, instructions, and training to any Sec.  213.7
designated employees who inspect track or supervise restoration and
renewal of track, or both, in areas that include turnouts with HPFs;
and (5) require that each HPF bear an identifying mark that identifies
the frog as an HPF.
    Comments: FRA received comments generally supporting the proposed
changes. AAR/ASLRRA, while strongly supporting the incorporation of the
longstanding waiver for HPFs, disagreed with FRA's proposal to include
``many of the same administrative and recordkeeping provisions found in
the'' waiver. AAR/ASLRRA assert that those additional administrative
requirements ``are no longer necessary or relevant once FRA has
determined the new technology is safe.''
    Final rule: Preliminarily, for formatting reasons, FRA is moving
the content of proposed footnote 3 to a new paragraph (b). The existing
language in Sec.  213.143 will be designated as paragraph (a), with a
slight grammatical revision to the introductory language, and the
existing table will be titled ``Table 1 to Sec.  213.143(a).''
    FRA agrees with AAR/ASLRRA's statement that the administrative
requirements imposed as conditions of the waiver are no longer
necessary given that the use of HPFs as proposed has been proven safe
and the regulations already require track owners to provide employees
responsible for inspecting or repairing HPFs to be appropriately
trained and demonstrate appropriate knowledge, understanding, and
ability to do so.
    Accordingly, FRA is not adopting the specific recordkeeping or
training requirements proposed in paragraphs (a) or (c) of proposed
footnote 3, and is also not adopting the second sentence of proposed
paragraph (d). FRA is retaining the remainder of the proposed
requirements related to HPFs, but in this final rule, FRA is
designating proposed

paragraphs (b) and (d) of footnote 3, as paragraphs (b)(1) and (2). The
changes as proposed in the NPRM are otherwise adopted, with the
revisions discussed above.

Section 213.233 Visual Track Inspections

    Proposed rule: Section 213.233 sets forth general requirements for
the frequency and method of performing required visual track
inspections on excepted track and track Classes 1 through 5. To better
reflect the existing scope of this section, FRA proposed to add the
word ``visual'' to the section heading so that it would read ``Visual
track inspections.'' Because other sections in part 213 cover different
types of inspections and inspection methods for the same types of track
(automated inspections, inspections of rail, etc.), this proposed
change would clarify that this section deals specifically with visual
track inspections. This proposal would also make Sec.  213.233's
heading consistent with the heading for the corresponding high-speed
track section, Sec.  213.365, ``Visual inspections.'' As discussed
below, FRA proposed to revise the heading for Sec.  213.365 so that the
headings are the same for both Sec. Sec.  213.233 and 213.365.
    Comments: AAR/ASLRRA contend that, although Sec.  213.233
``currently contemplates human visual inspection . . . as technology
evolves in the future,'' these inspections ``may not always be
conducted `visually' by humans.'' AAR/ASLRRA concludes that adding the
word ``visual'' to the heading of Sec.  213.233 ``could make them more
outdated in the future.''
    Final rule: FRA disagrees. As the commenters note, Sec.  213.233
currently requires visual track inspections and the change to the
heading is meant to make that clear, as well as make the heading of
Sec.  213.233 consistent with the heading of Sec.  213.365, which
applies to higher-speed tracks. If future regulatory changes are made
to Sec.  213.233 to allow the use of non-visual inspections
specifically under the section's requirements, the heading could be
updated at that time. Moreover, the change does not affect the use of
non-visual inspection methods as provided in other sections of this
part. The change is therefore adopted as proposed in the NPRM.
    Proposed rule: Paragraph (b) requires visual track inspections to
be made on foot or by ``riding over'' the track at a speed allowing the
inspector to visually inspect the track structure for compliance; and,
when inspecting from a vehicle, this section sets the vehicle's maximum
speed at 5 m.p.h. when ``passing over'' track crossings and turnouts.
Paragraph (b) also specifies that one inspector in a vehicle may
inspect up to two tracks at one time under certain conditions,
including that the second track is not centered more than 30 feet from
the track upon which the inspector ``is riding.'' Similarly, two
inspectors may inspect up to four tracks from one vehicle under certain
conditions, including that the second track center is within 39 feet
from the track on which the inspectors ``are riding.'' For grammatical
consistency throughout this section, FRA proposed revising the terms
``riding over'' and ``passing over'' to ``traversing'' in this
paragraph and, for the same reason, FRA also proposed to revise the
terms ``is riding'' and ``are riding'' to ``traverses'' and
``traverse.''
    Additionally, FRA proposed removing the terms ``upon which'' from
paragraphs (b)(1) and (2), and changing ``is actually'' to ``must be''
in paragraph (b)(3). These changes are not meant to affect the meaning
of Sec.  213.233, but are instead made for grammatical consistency.
    Comments: FRA received no comments on these proposed changes.
    Final rule: The changes are adopted as proposed in the NPRM.
    Proposed rule: As discussed in more detail in section IV.B of the
NPRM (see 84 FR 72530), FRA proposed to remove the last sentence of
paragraph (b)(3), also known as the high-density commuter line
exception. Paragraph (b)(3) requires, among other things, that each
main track be traversed by a vehicle or inspector on foot at least once
every two weeks, and every siding at least every month. The high-
density commuter line exception applies where track time does not
permit on-track vehicle inspection and where track centers are 15 feet
or less apart and exempts those operations from the inspection method
requirements of paragraph (b)(3). FRA's proposal to remove this
exception was directly responsive to Congress's direction in sec. 11409
of the FAST Act and NTSB's Safety Recommendation R-14-11. In addition,
when proposed, FRA believed no track owner currently utilized this
exception and the RSAC unanimously voted to remove the exception, so
FRA concluded its removal would have little to no impact on the
regulated industry.
    Comments: Despite affirmatively stating during the RSAC proceedings
that none of their members currently utilize the high-density commuter
line exception, in response to the NPRM, AAR/ASLRRA provided comments
stating that the National Railroad Passenger Corporation (Amtrak)
utilizes the exception in three locations, Penn Station in New York
City and in the Washington, DC and Boston terminals, and ``[c]ertain
commuter railroads'' also utilize the exception. AAR/ASLRRA further
argue that ``Amtrak is concerned that elimination of the exemption
would result in roadway workers being required to conduct additional
inspections at high traffic volume locations with narrow track
centers.'' Consequently, AAR/ASLRRA assert that FRA should not adopt
this proposal and, instead, study it further.
    Final rule: FRA has considered the new information provided by AAR/
ASLRRA and still concluded that the high-density commuter line
exception should be removed. FRA finds that the exception is no longer
justified and it is in the interest of safety that it be removed, based
on the 2013 Metro-North Bridgeport, CT accident, discussed in greater
detail in the NPRM (see 84 FR 72530), as well as internal evaluations
by FRA. Track over which a large number of passengers traverse should
be inspected at least in the same manner as other types of track. FRA
notes that the high-density commuter line exception applies only to
mainline track, so it is likely that any usage by Amtrak in Penn
Station and the Washington, DC and Boston terminals is very limited.
Additionally, FRA finds it is highly unlikely that the removal of the
exception will result in any additional required track inspections
since track inspectors will still be permitted to inspect tracks
adjacent to the one they operate over. Inspectors will simply be
required to alternate which track they traverse so that each track is
actually traversed every two weeks, instead of always permitting the
inspection from an adjacent track. This may require those railroads
utilizing the exception to slightly revise their inspection practices.
Combined with effective roadway worker protection, this should not
increase the risk to roadway workers and should improve the quality of
inspections. Thus, FRA has determined that continuing this exemption is
not in the interest of safety and the change is adopted as proposed in
the NPRM.
    Proposed rule: FRA proposed three changes to paragraph (c). First,
FRA proposed to add the word ``visual'' before ``track inspection'' in
the introductory text. This was simply to make paragraph (c) consistent
with the new heading for Sec.  213.233 and would have no effect on the
meaning of paragraph (c). Second, FRA proposed adding footnote 1 after
the word ``weekly'' in the table in paragraph (c).

The proposed footnote defines the term ``weekly'' to be a seven-day
period beginning on Sunday and ending on Saturday. This definition is
consistent with FRA's past interpretation and enforcement practice.
    Third, FRA proposed to add footnote 2 after the term ``passenger
trains'' in the table in paragraph (c). The proposed language was
suggested to the TSS Working Group by the Rail Heritage Association and
FRA agrees that it would reduce unnecessary burden on certain regulated
entities without negatively impacting safety. This proposed footnote
would exempt, in two situations, entities from the required twice-
weekly inspection requirement for track carrying passenger trains if
the passenger train service consists solely of tourist, scenic,
historic, or excursion operations as defined in 49 CFR 238.5. In the
first situation, this exemption would apply where no passenger service
is operated over the track during the inspection week. In the second
situation, this exemption would apply where passenger service is
operated during the inspection week but only on a weekend (Saturday and
Sunday) or a 3-day extended weekend (Saturday and Sunday plus either a
contiguous Monday or Friday) and an inspection is conducted before, but
not more than one day before, the start of the weekend or 3-day
extended weekend.
    FRA also proposed to revise paragraph (d). Specifically, FRA
proposed to add the phrase ``the Sec.  213.7 qualified'' at the
beginning of the paragraph to clarify that ``the person'' making the
inspection that the rule text refers to is the qualified track
inspector designated under Sec.  213.7. Additionally, FRA proposed
adding a sentence at the end of paragraph (d) stating that any
subsequent movements to facilitate repairs on track that is out of
service must be authorized by a Sec.  213.7 qualified person. This
section is silent as to whether or when movement over track that is out
of service is permissible. FRA recognizes that certain movements are
necessary to facilitate repairs and therefore does not interpret or
enforce the regulatory language to bar such movements of equipment and
materials on track that is out of service. The proposed revision was
meant to embody that practice and interpretation and prevent possible
confusion.
    Comments: FRA received comments supporting one of the proposed
changes and no adverse comment on any proposed change to paragraph (c)
or (d).
    Final rule: The changes are adopted as proposed in the NPRM.

Section 213.240 Continuous Rail Testing

    In the NPRM, FRA proposed to add this new section to allow track
owners to utilize continuous rail testing to satisfy the requirements
for internal rail inspections under Sec.  213.237 (for track Classes 1-
5), or Sec.  213.339 (for Class 6 track and higher). As explained in
the NPRM and above, proposed Sec.  213.240 would allow greater
flexibility in the rail flaw detection process by providing additional
time to analyze the data collected during continuous rail testing and
field-verify indications of potential rail flaws. This additional time
would allow for improvements in planning and execution of rail
inspections and rail defect remediation, thereby lessening the impact
on rail operations. As a result, more track time should become
available to conduct maintenance and increase inspections. However, as
continuous testing is a more complex process compared to the
traditional stop-and-verify rail inspection, FRA proposed certain
requirements related to this elective process to ensure it is conducted
properly, which include requirements to maintain records that help
ensure adequate FRA oversight.
    Proposed rule: Proposed paragraph (a) would allow track owners to
elect to use continuous rail testing instead of complying with Sec.
213.113(b) (requiring field verification of indications either
immediately or within 4 hours), provided the track owner complies with
the minimum requirements of Sec.  213.240. Proposed paragraph (a) also
makes clear that the track owner must still comply with all other
requirements of Sec.  213.113 (including remedial action requirements),
along with the requirements of proposed Sec.  213.240. In other words,
Sec.  213.240 provides additional time to field-verify a suspect
location, but once verified, the track owner must take appropriate
remedial action as described in Sec.  213.113(c).
    Comments: Asserting that FRA has not provided enough data to
evaluate the safety benefits of the proposed change to rail testing
procedures, NTSB commented that ``[u]ntil data from continuous rail
testing can be collected, analyzed, and verified as beneficial to
safety, the FRA should require that traditional stop-and-verify rail
inspections'' continue. FRA received additional comments regarding the
proposal to allow continuous testing and those comments are discussed
either above in Section IV if they were more general, or below in the
paragraph that they specifically concern.
    Final rule: As discussed above, and in the NPRM, continuous testing
has been conducted by multiple railroads under FRA's waiver process for
over a decade. FRA has reviewed and analyzed the data received from
those waivers as well as data related to service failures and
derailments. As noted above, waiver data indicates that as track owners
have increased their use of continuous rail testing under the waivers,
they have realized a decrease in broken-rail-caused accidents and an
increase in overall safety. FRA is confident that it has sufficient
data and experience supporting continuous testing as beneficial to
safety. Paragraph (a) is therefore adopted as proposed in the NPRM.
    Proposed rule: Proposed paragraph (b) outlines the minimum
procedures that a track owner must adopt to conduct continuous rail
testing under Sec.  213.240. Prior to starting a continuous testing
program, a track owner must adopt procedures that comply with this
section. Rail testing is vital to the prevention of track-caused
accidents, and documented procedures are necessary to ensure continuous
rail testing works consistently and effectively, and that those
involved understand their responsibilities and have a resource they can
consult if they have any questions. These minimum procedures are
designed to allow each track owner flexibility in determining the best
approach to conduct continuous testing. Proposed paragraphs (b)(1)
through (5) would require track owners conducting continuous rail
testing under Sec.  213.240 to adopt procedures addressing how (1) test
data would be transmitted and analyzed; (2) suspect locations would be
identified for field verification; (3) suspect locations would be
categorized and prioritized according to their potential severity; (4)
suspect locations would be field-verified; and (5) suspect locations
would be designated following field verification.
    Comments: NTSB commented that FRA should provide more information
regarding the specifics of the required minimum procedures.
Specifically, NTSB states that the ``guidance should discuss the
transmittal of testing data, and provide procedures for locating and
validating suspected defects, and managing recordkeeping.''
    With respect to proposed paragraph (b)(4), which would require the
procedures address how suspect locations would be field-verified,
BMWED/BRS commented that FRA has failed to articulate what actions must
be taken should the field verifier be unable to reproduce the defect
signature and that FRA should require suspect

locations ``be validated for 60 feet on either side of the suspect
defect.''
    Final rule: As discussed in more detail below, and in the NPRM, FRA
has intentionally designed the rule to provide track owners flexibility
on how to structure their continuous testing procedures, while ensuring
certain standards are met. Railroad operations are not uniform and
technology changes. Accordingly, FRA seeks to avoid limiting railroads'
flexibility to innovate and utilize new technology and approaches as
they are developed. However, the procedures track owners adopt must
accomplish their purpose. To make this clear in this final rule, FRA is
making changes throughout paragraph (b) requiring track owners' minimum
procedures adopted under 213.240 to ensure accurate data transmittal,
analysis, and conclusions throughout the entirety of the continuous
test process. Specifically, FRA is revising proposed paragraph (b)'s
introductory text and paragraphs (b)(1), (2), and (4).
    First, FRA is revising the last sentence of paragraph (b)'s
introductory text to specify that a railroad's continuous testing
procedures must conform with the requirements of Sec.  213.240 and
ensure the requirements of paragraphs (b)(1) through (5) are met.
    FRA is revising proposed paragraph (b)(1) to specify that a track
owner's procedures must ensure that test data will be ``timely and
accurately'' transmitted and analyzed. Procedures that do not
accomplish the timely and accurate transmittal and analysis of the test
data will not comply with the requirements of paragraph (b)(1). For
example, data integrity must be maintained throughout the collection,
analysis, and verification process, and transmitted in a manner and
speed sufficient to meet the field-verification timeframes discussed
below.
    FRA is revising proposed paragraph (b)(2) to make clear that the
procedures must ensure suspect locations are ``accurately'' identified
for field verification. Procedures that do not result in the accurate
identification of suspect locations for field verification will not
comply with the requirements of this paragraph (b)(2). For example, the
data must reflect the true position of the suspect location and contain
sufficient data to allow the field verifier to successfully identify
the suspect location. With this change, paragraph (b)(2) is adopted as
proposed in the NPRM.
    FRA is revising proposed paragraph (b)(4) to make clear that the
procedures must ensure suspect locations are ``accurately'' field-
verified. As explained in more detail in the NPRM, accurate field
verification is vitally important to continuous testing, and rail
testing in general, because it is the process by which the track owner
determines whether a rail defect exists or not, and if so, how serious.
FRA recognizes, however, that defect signatures will always differ to
some degree even when the same equipment is used over the same defect.
That is the nature of the technology. FRA does not intend to require a
railroad to implement procedures that would ensure field verifiers can
reproduce exact defect signatures. FRA recognizes this is simply not
feasible. FRA also believes that requirements adopted in this final
rule cover this issue by requiring track owners to document suspect
locations with repeatable accuracy so that they may be located for
field verification. However, to emphasize the general point discussed
above (i.e., that the procedures adopted by track owners must
accomplish their purpose), FRA is revising proposed paragraph (b)(4) to
make clear that the procedures must address how suspect locations will
be ``accurately'' field-verified. FRA intends the addition of
``accurately'' to more clearly convey the requirement. For example, the
procedures must enable the field verifier to locate the suspect
location and take appropriate action to determine whether the suspect
location contains an actual rail defect. Procedures that do not
accomplish the accurate field verification of a suspect location, which
would implicitly also require accurately locating that suspect
location, will not comply with the requirements of Sec.  213.240(b)(4).
    FRA disagrees with BMWED/BRS's comment that it is necessary to
require a track owner validate each suspect location for 60 feet on
either side. Paragraph (b)(4) requires the track owner have procedures
for the effective and accurate field verification of a suspect
location. Additionally, paragraph (f) of this section, discussed below,
requires that track owners record suspect locations with repeatable
accuracy that allows for the location to be accurately located for
subsequent verification. Requiring each suspect location to be
validated for 60 feet on each side would be redundant and would create
a substantial amount of extra, unnecessary work. Additionally, because
such a condition would apply only to track owners conducting continuous
testing, it would serve as a significant disincentive for railroads to
adopt continuous rail testing, because it would apply only to
continuous testing and not tradition stop-and-verify testing. Paragraph
(b)(4) is therefore adopted as proposed in the NPRM, with the change
noted above.
    Proposed rule: Proposed paragraph (c) would require the track owner
to designate and record the type of rail test to be conducted, whether
continuous or stop-and-verify, prior to commencing the testing. As
proposed, track owners could elect to conduct continuous testing in
conjunction with stop-and-verify rail testing, but a determination
would need to be made prior to commencement of the test as to which
type of test will be conducted on a given section of track. The
decision as to what type of test is being conducted on a given section
of track must be properly documented to ensure that the effectiveness
of the inspection can be adequately evaluated for efficacy and
reporting requirements. If the type of rail testing changes after the
test has commenced, FRA proposed to require the track owner to document
that change, including the time the test was initially started, the
time it was changed, the milepost where the test started, the milepost
where the test changed, and the reason for the change. As proposed,
these records would need to be made available to FRA upon request
during regular business hours following reasonable notice. To conduct
oversight and ensure safety, FRA must know the type of test utilized on
a section of track, because the type of test will dictate both the
necessary procedures and, more importantly, the required time period
for field verification of any suspected defects identified.
    Additionally, proposed paragraph (c) would require a track owner to
designate and document, at least 10 days prior to commencing a
continuous rail test, whether the test is being conducted to satisfy
the requirement for an internal rail inspection under Sec.  213.237 or
Sec.  213.339. As discussed in greater detail above, track owners are
required to conduct a sufficient number of internal rail inspections to
satisfy the requirements of Sec.  213.237 or Sec.  213.339. Under FRA's
proposal, a continuous rail test conducted to meet the minimum number
of required internal rail inspections would need to comply with Sec.
213.240, including the field-verification requirements under paragraph
(e). Track owners are, of course, permitted to conduct continuous rail
tests above and beyond the minimum requirements of Sec.  213.237 or
Sec.  213.339. As proposed, those additional rail tests (that are not
intended to meet the minimum number required by Sec.  213.237 or Sec.
213.339) would not be

required to meet the field-verification timeframe requirements of Sec.
213.240, and the track owner therefore cannot rely on such tests to
demonstrate compliance with either Sec.  213.237 or Sec.  213.339. As
proposed, the track owner must designate and record whether the test is
being conducted to satisfy the minimum frequency requirements of Sec.
213.237 or Sec.  213.339, at least 10 days in advance of the test to
allow FRA the opportunity to oversee the testing and ensure the proper
procedures are being followed.
    Comments: AAR/ASLRRA request two changes to the proposed rule.
First, AAR/ASLRRA state that the proposed 10-day advance designation of
whether a continuous test is being conducted to satisfy the minimum
frequency requirements of Sec.  213.237, or Sec.  213.339, ``may
actually detract from safety by preventing a continuous test run from
occurring when an opportunity to conduct such testing arises within the
ten-day window.'' Accordingly, AAR/ASLRRA asks that FRA remove the
proposed requirement. Second, AAR/ASLRRA oppose the requirement that,
when the type of test (continuous or stop-and-verify) changes after a
test commences, the track owner must document the reason for the
change. AAR/ASLRRA contend that ``the reason a track owner may decide
to change a test may be a result of a business decision not within
FRA's regulatory purview,'' and that the ``proposal appears to serve no
required safety purpose.'' Finally, AAR/ASLRRA comment on the use of
the term ``reasonable notice,'' which is discussed in more detail in
the section-by-section analysis for Sec.  213.7, above.
    Final rule: Whether a continuous test is done to satisfy the
inspection frequency required under this part affects what procedures
the track owner must follow. Thus, for FRA to conduct effective
oversight, and for track owner inspection personnel to know what
procedures apply, the track owner must articulate whether the test is
being conducted to satisfy the inspection frequency required under part
213. However, FRA agrees that the 10 days' advance notice is
unnecessary and could prevent a track owner from conducting a
continuous test if the equipment becomes available within the 10-day
window. Thus, FRA is not adopting the 10-day notice requirement and
instead will require that the track owner designate the type of test
prior to the start of the test. This revision will ensure that FRA and
track owner personnel know whether the procedures required under this
part apply to the test, while addressing AAR/ASLRRA's concern regarding
advanced notice.
    As for the proposed requirement that a track owner document the
reason for a change in the type of test after commencing the rail test,
although FRA does not believe it is burdensome, FRA agrees that the
information is not vital to FRA's ability to conduct oversight and
ensure safety. Accordingly, FRA is not adopting the proposed
requirement that a track owner document the reason for such a change.
However, the track owner must document the change and include the time
the test was started and when it changed, and the milepost where the
test started and where it was changed. Further, if a track owner
switches from a continuous rail test to a stop-and-verify test,
regardless of whether the continuous rail test was being conducted to
satisfy the minimum frequency requirements of Sec.  213.237, or Sec.
213.339 where applicable, all requirements of Sec.  213.113 will
immediately apply and any suspect locations found during the stop-and-
verify test must be field-verified within 4 hours.
    See the section-by-section analysis for Sec.  213.7 for FRA's
response to AAR/ASLRRA's comment regarding the use of the term
``reasonable notice.'' Paragraph (c) is adopted as proposed in the
NPRM, with the changes noted above.
    Proposed rule: Proposed paragraph (d) lists required qualifications
for certain persons involved in key aspects of the continuous testing
program. Proposed paragraph (d)(1) would require operators of
continuous rail test vehicles be qualified under Sec.  213.238. Section
213.238 lists the qualification requirements for operators of rail test
vehicles conducting stop-and-verify rail testing. FRA proposed that the
same qualification requirements apply to operators of continuous test
vehicles, stating that, like operators of stop-and-verify test
vehicles, operators of continuous test vehicles must ensure that the
vehicles conduct a valid search and function as intended, and be
capable of interpreting relevant equipment responses and determining
that a continuous, valid search has been conducted.
    Comments: Herzog Services, Inc. asserts that ``the data collection
phase of the Continuous Test Process only requires an operator whose
sole function is to ensure the test equipment is functioning properly,
and that a valid search for internal defects is being conducted.''
Herzog goes on to state that the ``operator is not performing
interpretation of the test data for the purpose of identifying a
suspect defect location,'' and that accordingly, the operator need not
be qualified under all elements of Sec.  213.238(b), specifically,
Herzog asserts that a continuous rail test inspection vehicle operator
should not be required to be qualified under Sec.  213.238(b)(3), which
requires the operator be trained to ``[i]nterpret equipment responses
and institute appropriate action in accordance with the employer's
procedures and instructions.''
    Final rule: FRA generally agrees with Herzog's comment and, in this
final rule, is revising paragraph (d)(1) to require the continuous rail
test inspection vehicle operator be qualified under Sec.  213.238, with
the exception of Sec.  213.238(b)(3). However, FRA makes clear that if
the operator of a continuous rail test inspection vehicle is not fully
qualified under Sec.  213.238, including Sec.  213.238(b)(3), then it
will not be possible for that inspection to change from a continuous
test to a stop-and-verify test, because the operator will not be
qualified under Sec.  213.238 to conduct a stop-and-verify test.
Paragraph (d)(1) is adopted as proposed in the NPRM, with the changes
noted above.
    Proposed rule: Proposed paragraph (d)(2) would require that the
internal rail inspection data be reviewed and interpreted by a person
qualified to interpret the equipment responses. FRA intentionally did
not propose specific qualification requirements but instead proposed to
leave it up to the track owner to ensure the necessary procedures are
in place for its specific system so that the persons reviewing and
interpreting the data have been properly trained and tested. As noted
in the NPRM, an analyst may not necessarily need to have intimate
knowledge of the inner workings of the test equipment, but must be
trained on how to properly assess the equipment responses, to determine
when a possible rail defect exists and field verification is necessary.
Accordingly, the track owner or a designee must have a process in place
to ensure all persons responsible for the interpretation of the data
are competent and capable of that task. By using the word
``qualified,'' FRA does not simply mean that the track owner has
designated an individual as qualified. To be ``qualified,'' the person
must be properly trained and tested, and thus possess the necessary
knowledge and ability to accurately and competently review and
interpret the rail test data and properly identify suspected rail
defects.
    Comments: FRA received no comments on this proposal.
    Final rule: After further review of the proposed language, FRA
realizes that by

not incorporating specific training requirements such as in Sec.
213.238 and instead giving track owners flexibility in how to train and
qualify, there is no express requirement that the track owner provide
relevant training and qualification records to FRA upon request.
Although FRA recognizes that track owners would likely maintain records
of operators' qualifications to demonstrate compliance with the rule,
without such a requirement, FRA would not be able to provide any
meaningful oversight of proposed paragraph (d)'s requirement that
operators be qualified to interpret the equipment responses.
Accordingly, in adopting paragraph (d)(2), FRA is including the
following language:

    Each employer of a person qualified to interpret equipment
responses shall maintain written or electronic records of each
qualification in effect, including the name of the employee, the
equipment to which the qualification applies, the date of
qualification, and the date of the most recent reevaluation of the
qualification, if any. Records concerning these qualifications,
including copies of training programs, training materials, and
recorded examinations, shall be kept at a location designated by the
employer and available for inspection and copying by FRA during
regular business hours, following reasonable notice.

    This language is consistent with the current requirements of Sec.
213.238. See the section-by-section analysis for Sec.  213.7 above, for
FRA's response to AAR/ASLRRA's comment regarding the use of the term
``reasonable notice.'' Paragraph (d)(2) is adopted as proposed in the
NPRM, with the changes noted above.
    Proposed rule: Proposed paragraph (d)(3) would require that all
suspected locations be field-verified by a person qualified under Sec.
213.238. FRA is aware that this is the same qualification required for
continuous test vehicle operators and believes that an understanding of
the vehicle's systems is necessary to understand the test data
accurately, find the suspected location, and field-verify the suspected
defect successfully.
    Comments: BMWED/BRS assert that track owners should be required to
``maintain and make available to FRA training records identifying
persons qualified to perform field-verification tests, the basis for
such qualifications, and the type(s) of field-verification instruments
they are qualified to operate.''
    Final rule: As proposed, paragraph (d)(3) would already require
that persons conducting field verification be qualified under Sec.
213.238. Section 213.238(g) itself requires that track owners make
qualification and training records available to FRA, and Sec.
213.238(e) requires that track owners keep a list of each qualification
in effect, including the name of the employee, the equipment to which
the qualification applies, the date of qualification, and the date of
the most recent reevaluation. FRA expects that the referenced
qualification requirements are sufficient to allow proper oversight and
ensure safety. Accordingly, paragraph (d)(3) is adopted as proposed in
the NPRM.
    Proposed rule: Proposed paragraph (e) would require that the
continuous test process, at a minimum, produce a report containing a
systematic listing of all suspected locations that may contain any
defect listed in the Remedial Action Table. The suspect location must
be identified with sufficient information so that a qualified person
under Sec.  213.238 can locate and field-verify each suspected defect
accurately. FRA intentionally did not prescribe how a suspect location
is identified and proposed to leave it up to the track owner because
the identification process may be affected by specific circumstances
facing each track owner.
    FRA notes that when proposed paragraph (e) is read in conjunction
with proposed paragraphs (b)(2) and (f), the suspect location must be
identified and recorded in a manner that allows the qualified person
under Sec.  213.238 to locate the suspect location with repeatable
accuracy. This could include using Global Positioning System (GPS)
coordinates, but for locations where GPS does not work, such as
tunnels, the track owner must have another procedure in place to
accurately identify the exact location of the suspected defects. FRA
also recognizes that the locations likely cannot be listed with perfect
accuracy and that there must be some acceptable margin of error.
Although FRA does not quantify the exact size of an allowable margin of
error, it cannot be of a size that would affect the ability of the
qualified person under Sec.  213.238 to locate the suspected defect
noted on the report accurately. For example, if the margin of error is
too large, there is a risk that the qualified person may confuse the
suspected defect noted on the report with another condition present in
or on the rail in the vicinity of the actual suspected defect.
    Comments: FRA received no comments on this proposed change.
    Final rule: Paragraph (e) is adopted as proposed in the NPRM.
    Proposed rule: Proposed paragraphs (e)(1) and (2) contain specific
timeframes in which field verification of suspected locations must be
conducted. For purposes of the verification timeframes, the indications
are classified into two categories: Those suspected defects that, if
verified, would require remedial action note ``A,'' ``A2,'' or ``B'' in
the Remedial Action Table (addressed in proposed paragraph (e)(2)); and
all other defects (addressed in proposed paragraph (e)(1)).
Additionally, under proposed paragraph (e)(3), indications of a
possible broken rail with rail separation must be protected
immediately. Proposed paragraph (e)(1) would require, subject to the
requirements of proposed paragraphs (e)(2) and (3), that the track
owner field-verify any suspect location within 72 hours after
completing the test run, or within 84 hours of the detection of the
suspect location, whichever is earlier. This, along with proposed
paragraphs (e)(2) and (3), would take the place of the current
requirement that suspect locations be field-verified within 4 hours.
Proposed paragraph (e)(1) would apply to any suspect location that does
not indicate a broken rail with rail separation or indicate a suspected
defect that, if verified, requires remedial action note ``A,'' ``A2,''
or ``B'' under the Remedial Action Table. In other words, this proposed
paragraph would apply to suspected defects that pose less of an
immediate safety risk than the ones covered in proposed paragraphs
(e)(2) and (3).
    Comments: FRA received multiple comments on this proposal. AAR/
ASLRRA assert that having two different time periods ``presents
tracking issues that would be difficult and burdensome for railroads to
monitor and would introduce unnecessary confusion regarding whether the
appropriate time permitted for field verification was met.'' BMWED/BRS
further comment that ``completion of the test run'' is ambiguous and
FRA should ``provide a clear and unambiguous definition as to when that
is.'' For their part, AAR/ASLRRA advocate that track owners have 84
hours from the completion of the test run for field verification.
    NTSB comments that the proposed field-verification timeframe could
allow ``certain hazardous rail defects . . . to go `unverified' for
longer than 12 hours,'' presenting a ``public safety concern'' and
states that FRA should enact ``[p]rocedures for mitigating risks.''
Likewise, the Chemical, Energy, and Agricultural Trade Associations
comment that they ``are concerned that the proposed revisions,
particularly the extension of the verification timeframes could lead to
a scenario where fatal flaws remained unaddressed and subject trains to
potential derailments.''

    Finally, Herzog notes a typographical error in proposed paragraph
(e)(1) wherein it references paragraphs (c)(2) and (3) when it should
reference paragraphs (e)(2) and (3). Additionally, Herzog requests that
FRA use the term ``indication'' as opposed to ``detection'' in
paragraph (e)(1) because the ``collection vehicle is only collecting
the test data and the location is an `indication' at that time.''
    Final rule: In adopting this paragraph (e)(1) in the final rule,
FRA has corrected the inadvertent typographical error so that paragraph
(e)(1) references paragraphs (e)(2) and (3). FRA also agrees that
``indication'' is a more suitable term than ``detection'' and has
changed paragraph (e)(1) accordingly. FRA makes clear that a track
owner receives the indication of the suspect location, for purposes of
the field-verification timeframe, when the collection vehicle passes
over the suspect location.
    FRA agrees that use of a single time period may allow track owners
to more efficiently and accurately track when a suspect location must
be field-verified without negatively impacting safety. However, FRA
does not agree that this time period should begin upon completion of
the test run, because ``completion of the test run'' could be hard to
define and raises the possibility that a test run could continue for a
lengthy and unpredictable period, potentially resulting in the field-
verification clock not starting until after a significant period of
time passes. In this final rule, FRA is instead adopting a single
timeframe that requires suspect locations be field-verified within 84
hours of their indication, i.e., when the collection vehicle passes
over the suspect location. This change will address the concern raised
about the different proposed timeframes while also ensuring that
suspect locations are field-verified within a defined period of time
that is not fluid or dependent on when a test run may end, thereby
addressing possible ambiguity as to the meaning of ``completion of the
test run.''
    As for the concerns raised by NTSB and the Chemical, Energy, and
Agricultural Trade Associations, as explained in greater detail above
and in the NPRM (see 84 FR 72528-30), FRA has trialed continuous rail
testing under the waiver process for over a decade and the regulatory
changes adopted here are based on the lessons learned and procedures
used under the waiver process. FRA is confident, based on the data and
experience gained from those waivers, that the field-verification
timeframes adopted here are sufficient to ensure safety.
    Finally, in adopting paragraph (e)(1), FRA is adding ``Except as
provided in paragraph (e)(6) of this section'' to the beginning of the
paragraph. This change is meant to account for the addition of
paragraph (e)(6), discussed below, codifying the interpretation
articulated in the NPRM preamble that the applicable timeframes for
field verification apply only to continuous rail tests conducted to
meet the minimum inspection frequency required by Sec.  213.237, or
Sec.  213.339 where applicable. Paragraph (e)(1) is adopted as proposed
in the NPRM, with the changes noted above.
    Proposed rule: Proposed paragraph (e)(2) would require that any
suspect location containing a suspected defect that, if verified, would
require remedial action note ``A,'' ``A2,'' or ``B'' under the Remedial
Action Table be field-verified no more than 24 hours after completion
of the test run, or 36 hours after detection of the suspect location,
whichever is earlier. The remedial action need not be the only required
remedial action, just one of those cited. Thus, if remedial action note
``A,'' ``A2,'' or ``B'' is cited in the remedial action column (the
last column) of the Remedial Action Table, the defects associated with
those remedial actions would be covered under proposed paragraph (e)(2)
and any suspect location possibly containing one of those defects must
be field-verified within the time required by proposed paragraph
(e)(2). Based on the table in Sec.  213.113(c), the covered defects
include:
     All compound fissures;
     Transverse fissures 60 percent or greater;
     Detail fractures 60 percent or greater;
     Engine burn fractures 60 percent or greater;
     Defective welds 60 percent or greater;
     Horizontal split head greater than 4 inches or where there
is a break out in the rail head;
     Vertical split head greater than 4 inches or where there
is a break out in the rail head;
     Split web greater than 4 inches or where there is a break
out in the rail head;
     Piped rail greater than 4 inches or where there is a break
out in the rail head;
     Head web separation greater than 4 inches or where there
is a break out in the rail head;
     Defective weld greater than 4 inches or where there is a
break out in the rail head;
     Bolt hole crack greater than 1.5 inches or where there is
a break out in the rail head;
     Broken base greater than 6 inches; and
     Ordinary breaks.
    Comments: The same comments discussed above for paragraph (e)(1)
are applicable here. See the above summary.
    Final rule: Please see the relevant FRA responses to the comments
above on paragraph (e)(1). For the reasons discussed above, in adopting
the final rule, paragraph (e)(2) uses the term ``indication'' instead
of ``detection''; does not reference ``completion of the test run'';
and requires field verification within 36 hours of the indication,
i.e., within 36 hours of the collection car passing over the suspect
location.
    Consistent with the change in paragraph (e)(1), FRA is also making
an additional change by adding ``Except as provided in paragraph (e)(6)
of this section'' to the beginning of paragraph (e)(2). This change is
meant to account for the addition of paragraph (e)(6), discussed below,
codifying the interpretation articulated in the NPRM preamble that the
applicable timeframes for field verification apply only to continuous
rail tests conducted to meet the minimum number required by Sec.
213.237, or Sec.  213.339 where applicable. Finally, FRA is making a
further change by adding ``and subject to the requirement of paragraph
(e)(3)'' to make paragraph (e)(2) clearer and consistent with (e)(1).
Paragraph (e)(2) is adopted as proposed in the NPRM, with the changes
noted above.
    Proposed rule: Proposed paragraph (e)(3) would require that track
owners have procedures in place to ensure adequate protection is
immediately implemented when continuous rail test inspection vehicles
indicate a possible broken rail with rail separation. As explained in
the NPRM, FRA intentionally does not specify what needs to be included
in the procedures but expects the track owners to determine what is
appropriate for their individual operations. At a minimum, these
procedures would need to include specific communication channels, open
at all times continuous rail testing is conducted and data is being
analyzed, among the personnel who can take the necessary steps to
implement adequate protection immediately. A track owner may not wait
until the suspected broken rail with rail separation is field-verified.
The visual indication received by the analyst alone is sufficient.
    Comments: FRA received no comments on this proposed change.

    Final rule: Paragraph (e)(3) is adopted as proposed in the NPRM.
    Proposed rule: Proposed paragraph (e)(4) states that a suspect
location is not considered an actual rail defect under Sec.  213.113(c)
until it has been field-verified by a person qualified under Sec.
213.238. Thus, as proposed, a track owner would not be required to
implement the remedial actions listed in the Remedial Action Table
until a suspect location is field-verified, or, as provided in proposed
paragraph (e)(5), the required time period to conduct field
verification has elapsed. Proposed paragraph (e)(4) goes on to state
that once a suspect location is field-verified and determined to be a
defect, the track owner must immediately perform all remedial actions
required by Sec.  213.113(a).
    Comments: FRA received no comments on this proposed change.
    Final rule: FRA notes that the inclusion of paragraph (e)(4) is
simply the codification of an existing FRA interpretation regarding
rail inspections. Under Sec.  213.113, an indication of a suspect
location is not considered a defect, and thus the track owner is not
required to take remedial action, until the suspect location is field-
verified and an actual defect is found. Paragraph (e)(4) is adopted as
proposed in the NPRM.
    Proposed rule: Under proposed paragraph (e)(5), if a suspect
location is not field-verified within the time required by proposed
paragraph (e)(1) or (2), it must be immediately protected by applying
the most restrictive remedial action in the Remedial Action Table for
the suspected type and size of the suspected defect. The protection
must cover a sufficient segment of track to assure coverage of the
suspected location until field verification. Thus, if the size of a
defect is not immediately clear, the protection must provide a safety
margin and cover a larger segment of track to ensure the limits of the
suspected defect are included in the protection.
    Comments: FRA received no comments on this proposed change.
    Final rule: Paragraph (e)(5) is adopted as proposed in the NPRM.
    Proposed rule: In the NPRM preamble, FRA stated that a continuous
rail test conducted to meet the minimum number of required internal
rail inspections under Sec.  213.237, or Sec.  213.339 where
applicable, also called regulatory tests, must comply with Sec.
213.240. FRA further explained that continuous rail tests conducted
above and beyond the minimum frequency requirements of Sec.  213.237,
or Sec.  213.339 where applicable, or on track not required to be
tested under Sec.  213.237, or Sec.  213.339 where applicable, i.e.,
non-regulatory tests, are not required to meet all requirements of
Sec.  213.240.
    Comments: BMWED/BRS assert there should be no difference between
the rules applicable to regulatory and non-regulatory tests. According
to BMWED/BRS, time limits for remedial action, field verification, and
inspection records should apply to every continuous test regardless
whether it is conducted to meet the minimum number of required internal
rail inspections under Sec.  213.237, or Sec.  213.339 where
applicable. BMWED/BRS contend that not requiring non-regulatory tests
to comply with Sec.  213.240 means that track owners ``will be given
`carte blanche' by FRA to delay verification and protection of
suspected rail defects indefinitely.''
    AAR/ASLRRA request clarification on FRA's discussion in the NPRM on
regulatory and non-regulatory tests. AAR/ASLRRA ``understand this to
mean that when track owners proactively choose to conduct additional
continuous tests that are not intended to fulfill the Federally
required [track safety standards (TSS)] inspection requirements, that
associated TSS testing intervals and deadlines, and data collection and
other administrative requirements do not apply to the conduct of those
tests.''
    In addition, NTSB believes that the proposed regulatory text may
not accomplish what FRA intended by its preamble discussion, stating
that proposed Sec.  213.240 would only exempt track owners from the 4-
hour field-verification timeframe in Sec.  213.113(b) if the continuous
test is conducted under the procedures listed in Sec.  213.240.
    Final rule: FRA agrees with NTSB that the proposed rule, as
written, may not accomplish effectively what was intended. Thus, FRA is
adding paragraph (e)(6), which states: ``A continuous rail test that is
not conducted to satisfy the requirements for an internal rail
inspection under Sec.  213.237, or Sec.  213.339 if applicable, and has
been properly designated and recorded by the track owner under
paragraph (c) of this section, is exempt from the requirements of
paragraphs (e)(1), (2), and (5) of this section.''
    This new paragraph also responds to the comment submitted by AAR/
ASLRRA. A non-regulatory test is exempt only from the required
timeframes for field verification. The track owner must still comply
with all other regulatory requirements under this part, including
recordkeeping, data collection, procedural, and reporting requirements.
    FRA agrees with BMWED/BRS that the time limits for implementing
remedial actions under Sec.  213.113(a) apply to all tests, whether
regulatory or non-regulatory, once a suspect location is field-verified
and a defect is found. However, FRA does not agree that such suspect
locations identified during non-regulatory tests should be subject to
the same field-verification timeframes. Doing so would create a
disincentive for track owners to conduct continuous tests above and
beyond the minimum requirements, including on track where rail
inspections are not required, such as yard track. Further, by not
imposing the rule's field-verification timeframes on suspect locations
found during non-regulatory tests, track owners have greater
flexibility to prioritize field verification of suspect locations that
pose a higher risk of derailment. Although the final rule allows track
owners to leave some suspected defects in certain track, FRA expects it
will result in track owners conducting tests where they otherwise would
not, and ultimately result in more rail defects being found and
remediated. Accordingly, paragraph (e)(6) is adopted as stated above.
    Proposed rule: Proposed paragraph (f) would require each suspect
location be recorded with repeatable accuracy so that the location can
be accurately located for subsequent field verification and remedial
action. As the continuous testing process allows track owners to
conduct field verifications well after the inspection equipment
traverses a track segment, it is critical that each suspect location be
dependably and accurately identified. Recording each suspect location
with this repeatable accuracy is a cornerstone of the entire process,
and can be accomplished through a variety or combination of methods,
including use of GPS and measuring from known reference points. When
GPS is used, procedures must be adopted that allow field-verifiers to
accurately find those suspect locations in areas where the signals for
GPS are compromised or otherwise rendered unreliable, such as in
tunnels, cut sections, or near buildings. When determining the
appropriate procedures to follow, track owners should be particularly
mindful of scenarios in which GPS is unreliable and few track features
exist for reference, such as can result from some rail that is rolled
in weld-free segments that exceed one-tenth of a mile in length.
    Comments: FRA received no comments on this proposed change.
    Final rule: Paragraph (f) is adopted as proposed in the NPRM.

    Proposed rule: Proposed paragraph (g) would require track owners
utilizing continuous rail testing to submit an annual report to the FRA
Associate Administrator for Railroad Safety/Chief Safety Officer no
later than 45 days following the end of each calendar year. This would
apply only to track owners that have conducted continuous rail testing
under Sec.  213.240 within the previous calendar year. Continuous
testing programs have been trialed through temporary waivers granted to
several railroads throughout the country; however, it is important to
continue monitoring the overall impacts and efficacy of the process.
This proposed reporting requirement is designed to provide sufficient
data to enable a comparison of the results and effectiveness of
continuous rail testing to the results and effectiveness of inspections
by track owners not utilizing continuous rail testing. The annual
report will also allow FRA to monitor the effectiveness of individual
track owners' specific continuous testing processes and programs, and
compare results on a micro level for specific track owners. Further, as
innovation and technology evolve, it is critical to the success of the
safety improvement process to collect and analyze this data for
positive trend exploration.
    FRA will use the data provided in each track owner's annual report
to match service failure rates with testing frequencies to estimate the
correlation between increased testing frequencies to the accident rate.
This will help confirm that the anticipated safety improvements are
realized. In addition, FRA intends to utilize traditional and new
methods of analysis to, among other things, study defect risk and track
health and will share data with the track owners to inform continuous
process improvement, as was done during the waiver process for
continuous rail testing. The information should also serve as valuable
input to FRA's ongoing research on potential commonalities in rail
geometry and rail defect growth patterns, to aid the industry in its
continuous effort to mitigate the risk of track-caused derailments.
    The annual report must be in a reasonably usable format, or its
native electronic format, and contain at least all the information
required by proposed paragraphs (g)(1) through (10) for each track
segment requiring internal rail inspection under either Sec.  213.237
or Sec.  213.339. Specifically, the submission must include the track
owner's name ((g)(1)); the name of the railroad division and
subdivision ((g)(2)); the segment identifier, milepost limits, and
length of each segment ((g)(3)); the track number ((g)(4)); the class
of track ((g)(5)); the annual million gross tons over that segment of
track ((g)(6)); the total number of internal rail tests conducted over
each track ((g)(7)); the type of internal rail test conducted on the
segment, whether continuous rail test or stop-and-verify ((g)(8)); and
the total number of defects identified over each track segment
((g)(9)), which would include only the defects that have been field-
verified and determined to be actual defects. Proposed paragraph
(g)(10) would also require the total number of service failures on each
track segment.
    This information is necessary for FRA to ensure safe operations and
monitor the effectiveness of continuous rail testing and the
requirements of this regulation. For FRA to fulfill its
responsibilities to oversee railroad safety and the implementation of
continuous testing, the agency must receive sufficient data to
effectively perform its functions, while not placing undue burden on
the industry. Accordingly, the annual reporting requirement is intended
to provide FRA with information needed to ensure that the continuous
testing process is consistently carried out in a proper manner.
    Comments: AAR/ASLRRA ask for clarification on the intended meaning
of ``service failure'' as used in proposed paragraph (g)(10) and
whether it is meant to be defined the same as in Sec.  213.237(j)(3).
In commenting, NTSB asserts that ``to more effectively monitor the
programs, the proposed regulation should require separately listing the
quantity of each type of internal rail test on each segment.'' NTSB
also suggests the regulation include ``[p]rocedures for monitoring rail
inspection program,'' indicating that allowance of ``multiple rail
inspection processes on a given segment in a given year . . . could be
more complex to monitor.''
    Final rule: FRA is confident the annual reporting requirement under
paragraph (g), together with FRA's general oversight authority, is
sufficient to monitor the safety and effectiveness of track owners'
rail inspection programs. FRA agrees that requiring a listing of the
quantity and type of each rail inspection on a segment is vitally
important information and proposed paragraphs (g)(7) and (8) to
accomplish that. To make this intent clearer, FRA is combining proposed
paragraphs (g)(7) and (8) into paragraph (g)(7) to read: ``The total
number of stop-and-verify rail tests and the total number of continuous
rail tests over each track segment.'' In conformance with this change,
FRA has renumbered proposed paragraphs (g)(9) and (10) as paragraphs
(g)(8) and (9) in this final rule.
    Finally, FRA confirms the term ``service failure'' as used in
proposed paragraph (g)(10), now paragraph (g)(9), is intended to have
the same meaning as in Sec.  213.237(j)(3). Paragraph (g) is adopted as