Daily Rules, Proposed Rules, and Notices of the Federal Government
On August 26, 2010, FRA issued a Notice of Proposed Rulemaking (NPRM) as a first step to the agency's promulgation of concrete crosstie regulations per the Congressional mandate contained in Section 403(d), of the Rail Safety Improvement Act of 2008 (Pub. L. 110-432, Division A) (RSIA).
On May 5, 2011, the International Brotherhood of Teamsters, Brotherhood of Maintenance of Way Employes Division (BMWED) filed a petition for reconsideration (BMWED Petition) of the final rule and on May 27, 2011, the Association of American Railroads (AAR) filed a petition for reconsideration (AAR Petition) of the final rule. In order to provide sufficient time to fully consider both Petitions, FRA delayed the effective date of the final rule until October 1, 2011.
The specific issues raised by these petitioners and FRA's responses to their petitions, are discussed in detail below in the “Section-by-Section Analysis” portion of the preamble. The Section-by-Section analysis also contains a detailed discussion of each provision of the final rule which FRA has amended or clarified. The amendments contained in this document generally clarify requirements currently contained in the final rule or allow for greater flexibility in complying with the rule, and are within the scope of the issues and options discussed, considered, or raised in the NPRM.
The final rule provides that concrete crossties shall not be “broken through or deteriorated to the extent that prestressing material is visible.” 49 CFR 213.109(d)(1). AAR requests that FRA amend 49 CFR 213.109(d)(1) to state, “broken through or deteriorated to the extent outer prestressing strands are no longer in tension.” AAR Petition at 3-4. In proposing such language, AAR asserts that FRA is inconsistent with the specifications in 49 CFR 213.335(d)(1) for Class 6 track.
FRA declines to adopt AAR's recommendation to modify the language of 49 CFR 213.109(d)(1). The intent of 49 CFR 213.109(d)(1) is to ensure that concrete crossties with reinforcing strands that have lost their bond to the concrete are considered defective. This intent is clearly described in the preamble to the final rule.
AAR suggests using the same standard for § 213.109(d)(1) as specified in § 213.335(d), for Class 6 track. Section 213.335(d) provides that the crosstie cannot be “so deteriorated that the prestress strands are ineffective or withdrawn into the tie at one end and the tie exhibits structural cracks in the rail seat or in the gage of track.” FRA believes that the standard adopted for lower speeds of track in § 213.109(d)(1) improves upon § 213.335(d) for lower classes of track by more clearly defining what it means to be “ineffective” and explaining how to find “structural cracks.” FRA notes that while further study would be needed to determine whether this clarifying language would also be appropriate in higher classes of track, any potential amendment to § 213.335(d) would be outside the scope of this proceeding, as modifications to the language in § 213.335(d) was neither raised in the NPRM, nor discussed in the final rule. However, FRA would be willing to address the language in § 213.335(d) in future updates to part 213.
AAR further states that FRA's position to reject the proposed phrase “completely broken through” for § 213.109 is unconvincing.
Although AAR is concerned with the situations where prestressing material is visible and yet not defective, FRA clearly explained in the preamble to the final rule in response to AAR's comment that FRA is not concerned with prestressing material being visible due to a wheel impact or due to the manufacturing process.
AAR argues that § 213.109(d)(6) should be amended to state: “[c]onfigured with less than two fasteners on the same rail except (i) as provided in § 213.127(c) and (ii) where the fastenings on two adjacent ties on class 1 and class 2 track provide the equivalent of the fastenings on one tie, in which case the two adjacent ties shall be counted as one tie.” AAR Petition at 5.
This issue was raised by AAR in previous comments and addressed by FRA in the final rule. AAR has provided nothing new to sway the agency's views on the issue. Thus, FRA is again declining to adopt the proposal.
FRA responds that, as with nonconcrete ties, one of the safety requirements of an effective concrete tie is that it be able to hold fasteners. Consequently, FRA is declining to accept AAR's recommended change to the regulatory text due to this safety concern.
FRA contends that, as with non-concrete ties, one of the safety requirements of an effective concrete tie is that it be able to hold fasteners. Thus, FRA is declining to accept this suggested change to the regulatory text due to this safety concern.
As noted above, FRA believes that it responded to this issue adequately in the preamble to the final rule and that this issue is duplicative and need not be addressed.
The rail and fastener assembly work as a system, capable of providing electrical insulation, and adequate resistance to lateral displacement, undesired gage widening, rail canting, rail rollover, and abrasive or excessive compressive stresses. * * * Part of the complexity of crosstie assessment is the fastener component. Both crossties and fasteners act as a system to deliver the expected performance effect. A non-compliant crosstie and defective fastener assembly improperly maintains the rail position and support on the crosstie and contributes to excessive lateral gage widening (rail cant-rail rollover), and longitudinal rail movement because of loss of toeload.
AAR requests amending § 213.109(e)(1) to add “(50 inches in the case of concrete ties)” after “48 inches” and § 213.109(e)(3) to add “(25 inches in the case of concrete ties)” after “24 inches.” AAR Petition at 6.
The spacing requirements for crossties at rail joints contained at § 213.109(e), were not modified by the final rule. The specifications for crossties' spacing are based on providing sufficient support to a rail joint and are not dependent on the type of crosstie material used, whether the crossties are made of wood or concrete. For Class 1 and Class 2 track, the regulation provides that each rail joint shall be supported by at least one crosstie whose centerline is within 24 inches of each rail joint location. 49 CFR 213.109(e)(1). For Classes 3, 4, and 5, each rail joint shall by supported by either at least one non-defective crosstie within 18 inches of the joint, or have two crossties, one on each side of the rail joint, whose centerlines are within 24 inches of the rail joint. 49 CFR 213.109(e)(2), (3). The Track Safety Standards already allow for flexibility in the spacing of crossties.
AAR's suggestion does not appear to have been previously raised in the
AAR argues that “today's automated inspection equipment cannot measure rail seat deterioration at all, let alone within
Throughout the RSAC process, the parties agreed that automated inspections were a good approach to locating areas of rail seat deterioration. Indeed, the NPRM states that “[o]ther than automated inspection, there are currently no other tools capable of aiding in the detection of rail seat deterioration.” 75 FR 52,497 (Aug. 26, 2010). FRA is surprised that AAR asserts at this stage in the rulemaking process that the technology to perform these types of automated inspections does not exist.
Although AAR is technically correct that automated equipment cannot currently
The design and practicality of all automated and autonomous geometry measurement systems is a supplement to visual inspection efforts toward identifying locations of greatest derailment risk. It has been FRA's objective and policy that on-the-ground visual verification must be done by inspectors to validate not only rail seat deterioration, but all track structure and geometry conditions discovered by automated means. A credible gage measurement restraint system (GRMS) is the preferred choice, however, only FRA's DOTX 218 is properly equipped to vertically and laterally load the rails into the crosstie seat area. FRA's other cars load vertically, but not necessarily completely load the rails laterally to “seat” the rail on the crosstie pad in all instances. FRA's rail profiling system (rail cant method) provides a highly accurate indication (advisory) of possible rail seat deterioration. FRA's safety strategy is to promptly identify rail seat deterioration locations with DOTX 217, 219, and 220 cars' onboard rail profiling systems, then re-inspect those areas indicating rail seat deterioration conditions. FRA's automated inspection vehicle uses rail cant to indicate areas of rail seat deterioration, to an accuracy level of within at least one degree of rail cant, which is equivalent to
Additionally, there were presentations made at the CCTF meetings as part of the RSAC process, describing technologies that can detect or indicate rail seat abrasion. These included systems used by Georgetown Rail Equipment Company, Holland Company LP, and ENSCO, Inc.
FRA also recognizes that detecting rail cant alone will not necessarily demonstrate
Automated inspection technology is able to detect rail seat deterioration to an accuracy of
BMWED urges that FRA amend the final rule to require “exception report data to be provided to, or made readily available to, persons fully qualified under § 213.7, including track inspectors responsible for performing § 213.233 visual track inspection in between automated inspection cycles.” BMWED Petition at 5. To support its argument, BMWED cites to other provisions in the CFR that mandate focused dissemination and availability of reports.
FRA accepts BMWED's proposed amendment to the final rule. The final rule states that “[t]he automated inspection measurement system shall produce an exception report containing a systematic listing of all exceptions to § 213.109(d)(4), identified so that an appropriate person(s) designated as fully qualified under § 213.7 can field-verify each exception.” 49 CFR 213.234(e). The final rule requires that “[e]ach exception must be located and field-verified no later than 48 hours after the automated inspection” and “[a]ll field-verified exceptions are subject to all the requirements [of part 213].” 49 CFR 213.234(e). FRA notes that § 213.234(e) implicitly requires that persons fully qualified under § 213.7 and whose territories are subject to automated inspection under § 213.234 be provided with, or have ready access to a copy of the exception report, because without such information being disseminated, § 213.234(e) cannot be satisfied. In short, qualified persons under § 213.7 cannot logically field-verify exceptions found in the exception report without access to the exception report. Furthermore, it is in the best interest of the railroad to provide all track inspectors in the relevant territory with access to the exception report so that problem areas can be monitored and corrected.
It was FRA's intent in the final rule that the railroad would voluntarily provide all persons fully qualified under § 213.7 with a copy of the exception report, so that both a supervisor under § 213.7(a) and a track inspector under § 213.7(b) would have access to the report. It is expected that the designated § 213.7 person(s) would then act responsibly upon the information subject to the requirements in part 213, once verified, so that appropriate remedial action would be taken in a timely manner.
This issue was raised in the joint comments to the NPRM of the American Train Dispatchers Association (ATDA), Brotherhood of Locomotive Engineers and Trainmen (BLET), Brotherhood of Maintenance of Way Employees Division (BMWED), Brotherhood of Railroad Signalmen (BRS), and the United Transportation Union (UTU) (Labor) and addressed by FRA in the final rule. Labor representatives recommended that FRA mandate that a physical copy of the exception report be given to the person that the track owner has designated as being responsible for frequency inspections pursuant to § 213.233. In response, FRA declined to adopt Labor's recommendation, stating that it “refuses to interfere with a track owner's assignment process.” 76 FR 18,081 (Apr. 1, 2011). FRA clarified that it “agrees that it would be a best practice for the track owner to ensure that the person responsible for performing the frequency inspections required by § 213.233 be provided a copy of the exception report, as all field-verified exceptions are subject to all of FRA's Track Safety Standards.” 76 FR 18,081 (Apr. 1, 2011).
FRA intended to convey with its response to Labor's comment that it would not direct the manner in which a track owner communicates and assigns corrective action to a noncompliant condition among their personnel. The final rule requires that an exception report be created, but does not explicitly require that the report be given to a particular person, as long as a fully-qualified person under § 213.7 properly field-verifies any exceptions pursuant to the rule. Persons designated under § 213.7 must receive or have access to the exception report in order to comply with the provisions of the final rule. In other words, a designated qualified inspector is required by the final rule to receive any noncompliant rail seat deterioration reports, whether the reports are made accessible to or are physically handed to the person designated under § 213.7, for field-verification and repairs purposes.
While FRA addressed Labor's comments in the preamble to the final rule, BWMED's Petition modified Labor's recommendation by asking that FRA require that individuals performing frequency inspections be provided with a copy of the automated inspection report
To clarify FRA's original intent and to promote good industry practice, FRA amends § 213.234(e) to require that
BMWED asserts that “§ 213.234(d)(1) has the affect [sic] of adding up to an additional
FRA accepts BMWED's recommendation that railroads must flag locations identified as
FRA estimates that there would be approximately eight times as many locations found at
While railroads astutely demand higher than minimum standards, FRA only requires the minimum for safety purposes. A location indicating rail seat deterioration of
In light of the preceding discussion, a new paragraph is added to § 213.234(e) to require exception reports to note an “alert” for locations identified between
AAR asserts that “[r]ailroads traditionally concentrate training classes for their existing employees in the first half of the year, with training materials prepared during the second half of the previous year.” AAR Petition at 7. By postponing the applicability date of the formal training provision in § 213.234(h) to July 1, 2012, these requirements would comport with the railroads' standard training schedule.
In consideration of these typical railroad training cycles, FRA will extend the applicability date of § 213.234 to July 1, 2012. Accordingly, FRA amends 49 CFR 213.234(a).
Prior to issuing the April 1, 2011 final rule, FRA prepared and placed in the docket a regulatory analysis addressing the economic impact of the final rule. The rule was evaluated in accordance with existing policies and procedures and determined to be non-significant under both Executive Orders 12866 and 13563 and DOT policies and procedures.
The Regulatory Flexibility Act of 1980 (the Act) (5 U.S.C. 601
The information collection requirements in this final rule and FRA's response to petitions of reconsideration are being submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. For information or a copy of the information collection submission sent to OMB, please contact Mr. Robert Brogan at 202-493-6292 or Ms. Kimberly Toone at 202-493-6132 or via e-mail at the following addresses:
Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to the Office of Management and Budget, Office of Information and Regulatory Affairs, 725 17th St., NW., Washington, DC 20503, attn: FRA Desk Officer. Comments may also be sent via e-mail to the Office of Management and Budget at the following address:
OMB is required to make a decision concerning the collection of information requirements contained in response to the petitions of reconsideration of this final rule between 30 and 60 days after publication of this document in the
FRA cannot impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of this final rule. The OMB control number, when assigned, will be announced by separate notice in the
FRA has evaluated this action in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28,545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321
Executive Order 13132, “Federalism” (64 FR 43,255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.
As stated in the preamble to the final rule, FRA has analyzed this final rule in accordance with the principles and criteria contained in Executive Order 13132. FRA has determined that this final rule has no federalism implications, other than the possible preemption of State laws under Sec. 20106.
Pursuant to Sec. 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Sec. 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) [currently $140,800,000] in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. This response to the petitions for reconsideration of the
Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.”
Under the Administrative Procedure Act, an independent Notice of Proposed Rulemaking (NPRM) is not required when an agency, for good cause, finds “that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(3)(B). FRA believes that it is making only technical changes, clarifications, and minor amendments in response to petitions for reconsideration of FRA's final rule. For this reason, and because FRA believes that it has provided sufficient opportunities for notice and comment through the NPRM, the final rule, and the petitions for reconsideration which were all contained in the public docket, publishing an independent NPRM is unnecessary.
Anyone is able to search the electronic form of all comments received into any of DOT's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement published in the
Penalties, Railroad safety, Reporting and recordkeeping requirements.
In consideration of the foregoing, FRA amends part 213 of chapter II, subtitle B of title 49, Code of Federal Regulations, as follows:
49 U.S.C. 20102-20114 and 20142; Sec. 403, Div. A, Public Law 110-432, 122 Stat. 4885; 28 U.S.C. 2461, note; and 49 CFR 1.49.
(1) An accuracy, to within
(2) A distance-based sampling interval, which shall not exceed five feet; and
(3) Calibration procedures and parameters assigned to the system, which assure that indicated and recorded values accurately represent rail seat deterioration.
(1) Exception reports must be provided to or be made available to all persons designated as fully qualified under § 213.7 and whose territories are subject to the requirements of § 213.234.
(2) Each exception must be located and field-verified no later than 48 hours after the automated inspection.
(3) All field-verified exceptions are subject to all the requirements of this part.
(4) Exception reports must note areas identified between
(1) Maintain and make available to FRA documented calibration procedures of the measurement system that, at a minimum, specify an instrument verification procedure that ensures correlation between measurements made on the ground and those recorded by the instrumentation; and
(2) Maintain each instrument used for determining compliance with this section such that it accurately provides an indication of the depth of rail seat deterioration in accordance with paragraph (d)(1) of this section.