Federal Register Notice

Federal Register / Vol. 76, No. 175 / Friday, September 9, 2011 / Rules and Regulations
§§ 76.1605 and 76.1606
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§§ 76.1612 and 76.1613
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[Removed]

13. Remove §§ 76.1605 and 76.1606.
[Removed]

14. Remove §§ 76.1612 and 76.1613.

[FR Doc. 2011–23010 Filed 9–8–11; 8:45 am]
BILLING CODE 6712–01–P

DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 213
[Docket No. FRA–2009–0007, Notice No. 4]
RIN 2130–AC35

Track Safety Standards; Concrete
Crossties
Federal Railroad
Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule; response to petitions
for reconsideration.
AGENCY:

This document responds to
petitions for reconsideration of FRA’s
final rule published on April 1, 2011,
mandating specific requirements for
effective concrete crossties, for rail
fastening systems connected to concrete
crossties, and for automated inspections
of track constructed with concrete
crossties. This document amends and
clarifies the final rule.
DATES: The final rule is effective
November 8, 2011.
FOR FURTHER INFORMATION CONTACT:
Kenneth Rusk, Staff Director, Office of
Railroad Safety, FRA, 1200 New Jersey
Avenue, SE., Washington, DC 20590
(telephone: (202) 493–6236); or
Veronica Chittim, Trial Attorney, Office
of Chief Counsel, FRA, 1200 New Jersey
Avenue, SE., Washington, DC 20950
(telephone: (202) 493–0273).
SUPPLEMENTARY INFORMATION:
SUMMARY:

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Background
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).
See 75 FR 52,490. On April 1, 2011,
following consideration of written
comments received in response to the
NPRM, FRA published a final rule
mandating specific requirements for
effective concrete crossties, for rail
fastening systems connected to concrete
crossties, and for automated inspections
of track constructed with concrete

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crossties. See 76 FR 18,073. FRA
received two petitions for
reconsideration in response to the final
rule.
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. See 76
FR 34,890 (June 15, 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-bySection 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.
Section-by-Section Analysis
Amendments to 49 CFR Part 213
Section 213.109

Crossties

AAR Petition: Visibility of Prestressing
Material
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. See AAR Petition at 3.
AAR argues that ‘‘FRA’s concern is
whether the prestressing material is in
tension,’’ as demonstrated by the
discussion in the final rule. AAR
Petition at 3.
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. See 76 FR

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18,077–18,079 (Apr. 1, 2011). While a
concrete crosstie that is ‘‘broken through
or deteriorated to the extent outer
prestressing strands are no longer in
tension’’ would be defective, the
standard that AAR proposes is difficult
to quantify in the field, as an inspector
would have difficulty knowing if the
prestressing strands are no longer in
tension. AAR’s proposal would add a
qualifier to the standard, making the
regulation more subjective and more
difficult to enforce.
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. See AAR
Petition at 3. Contrary to this concern,
FRA’s intent was to simply provide
consistency in the language used for
wooden crossties and does not find it
necessary to introduce ambiguity by
adopting differing language without
sufficient justification.
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. See 76 FR
18,077–18,079 (Apr. 1, 2011). FRA
thoroughly explained its intent in the
preamble that by saying the material is
‘‘visible’’ it does not mean ‘‘a concrete
tie being simply chipped due to wheel
impact as opposed to actual
deterioration.’’ 76 FR 18,077 (Apr. 1,
2011). FRA also clarified that it is ‘‘not

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Federal Register / Vol. 76, No. 175 / Friday, September 9, 2011 / Rules and Regulations

concerned with reinforcing material that
may be left visible on the end of a tie
during the manufacturing process.’’ 76
FR 18,077 (Apr. 1, 2011). While this
explanatory language is not in the rule
text itself, it is clear that FRA intended
to clarify in the preamble those prestress
concrete crosstie conditions that are of
concern to the agency. See Nov. 18,
2008, Concrete Crossties Task Force
(CCTF) meeting document (TSCCTF08–
1118–06 CONSENSUS WG & TF CLEAN
Document For Concrete Crossties,
‘‘NOTE: FRA wants to describe prestress tie conditions, to be covered in
the compliance manual or preamble’’).
As FRA adequately addressed AAR’s
comment to the NPRM in the preamble
to the final rule, FRA declines to adopt
AAR’s proposed change to
§ 213.109(d)(1).
AAR Petition: The Use of Crossties With
One Fastener on a Rail
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. See 76
FR 18,077 (Apr. 1, 2011). In response to
the issue, FRA has already stated the
following:
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.

76 FR 18,077 (Apr. 1, 2011). In the
Section-by-Section analysis of the final
rule, FRA further stated the following
with respect to AAR’s proposal:

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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.

76 FR 18,079 (Apr. 1, 2011).
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. See 49 CFR 211.29(c).
However, FRA would like to take this
opportunity to further explain its

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reasoning. Although AAR argues that
the rule text that disqualifies concrete
crossties under the conditions described
will impose a significant cost on the
industry, FRA notes that it has not
changed its enforcement policy in the
final rule and those concrete crossties
that are unable to hold fasteners would
have been defective even prior to the
issuance of the final rule. The final rule
did not modify the existing requirement
that any type of crosstie with a missing
fastener is considered defective in part
213. The Track Safety Standards require
that to be an effective crosstie, it must
be able to hold fasteners that can
restrain the rail. The crosstie, rail, and
fasteners work together as a system to
provide effective restraint.1 FRA
concedes that the BNSF Railway
(BNSF), the only railroad known to FRA
that utilizes defective crossties in this
manner, will need to spend substantial
funds to remediate any trackage that
consists of these defective crossties.
However, this cost is not a new cost as
a result of the final rule, but merely the
cost of compliance with part 213 as it
existed prior to the final rule. Finally,
amending the rule text is not an
appropriate avenue to address one
railroad’s isolated and limited practice
on approximately fifty miles of nonmainline track.2 A more appropriate
avenue would be for BNSF to seek a
waiver from the FRA Railroad Safety
1 See 76 FR 18,073, 18,079 (Apr. 1, 2011):
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.
2 AAR’s Petition included BNSF’s submission of
its May 2011 findings, based on reports from a
geometry car that had operated over BNSF’s
Seadrift subdivision on December 14, 2010.
According to AAR, BNSF’s practice of using
crossties in this manner will not hinder, but may
actually improve safety. FRA notes that BNSF’s
findings were based on the operation of trains at ten
miles per hour, over an eight mile segment of track
designed for twenty-five miles per hour. This data
alone is insufficient to demonstrate that this
practice would prevent rollover at higher speeds
and varying conditions or apply more broadly than
as shown on this particular trackage. FRA also notes
that AAR states that ‘‘there are eight miles of track
with approximately 80 percent of the ties consisting
of ties with one defective fastener (approximately
20 percent of the ties are new).’’ AAR Petition at
5. If this description is correct, this track generally
meets the Class 1 criteria of 5 non-defective ties per
39 feet of track.

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Board, pursuant to the procedures
contained in 49 CFR part 211.3
AAR Petition: Spacing of Concrete
Crossties at Rail Joints
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.4 Although it
may be true that the industry spaces
concrete crossties further apart than
wooden crossties, all crossties, wood or
concrete, must provide effective support
for the rail joint.
AAR’s suggestion does not appear to
have been previously raised in the
3 FRA may waive its regulatory requirements
when a waiver is in the public interest and
consistent with railroad safety. In doing so, FRA
often imposes conditions designed to ensure safety.
If a railroad believes that there are some FRA
requirements applicable to it that should be waived,
it may petition for a waiver under the procedures
set forth in 49 CFR part 211. Any such petition
should specify why the railroad believes it cannot
comply with the regulation and what alternative
measures it will take to ensure safety. See 49 CFR
211.9. If FRA’s Railroad Safety Board determines
that a railroad can provide, through alternative
procedures, the same level of safety that the FRA
regulations provide, then the Safety Board may
grant the waiver. FRA’s Railroad Safety Board’s
decision to restrict the exercise of FRA’s regulatory
authority in no way constrains the exercise of its
statutory emergency order authority under 49
U.S.C. 20104. That authority was designed to
address imminent hazards not dealt with by
existing regulations and/or so dangerous as to
require immediate, ex parte action on the
government’s part.
4 For example, the railroads have a range of
crosstie spacing options, between 19.5 inches and
30 inches, depending on the size of the crosstie, the
size of the rail, and the class of track. The industryrecommended practice is to avoid placing a
concrete crosstie directly underneath the adjoining
ends of two rails, making a rail joint, as the
compressive forces downward on the concrete
crosstie would deteriorate the concrete crosstie
quickly.

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Federal Register / Vol. 76, No. 175 / Friday, September 9, 2011 / Rules and Regulations
RSAC process or in any of the
comments to the NPRM. Nor has AAR
provided FRA with any data to support
its contention that concrete crossties
should be treated differently from wood
crossties in this manner. Moreover, AAR
has not provided any basis for why FRA
must consider these additional facts, or
explained why these facts were not
presented to the Administrator within
the allotted time. See 49 CFR 211.29(b).
Thus, FRA is denying AAR’s request.
Furthermore, for the reasons noted
above, FRA believes that the issue being
raised by AAR is outside the scope of
this proceeding and that it is
inappropriate for FRA to address the
issue at this late stage of the rulemaking
proceeding.
Section 213.234 Automated Inspection
of Track Constructed With Concrete
Crossties

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AAR Petition: Whether Automated
Inspection Equipment Cannot Measure
Rail Seat Deterioration as Required
AAR argues that ‘‘today’s automated
inspection equipment cannot measure
rail seat deterioration at all, let alone
within 1⁄8 of an inch.’’ AAR Petition at
5. Further, AAR states that ‘‘automated
equipment is not capable of meeting the
standard set forth in subsection
213.234(d).’’ AAR suggests deleting
§ 213.234(d), (e), and (h). See AAR
Petition at 5.
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 measure rail seat deterioration
directly, today’s automated equipment
can indicate locations of rail seat
deterioration. Rail seat deterioration is
indicated as a result of interpolations
and calculations from rail cant
measurements. The rail cant
measurements provide an indication to
the designated § 213.7 person that the
location should be field-verified. The
railroad industry did not want to be
limited to a requirement to locate rail
seat deterioration through automated
inspection using the rail cant method
alone. In response to this concern, FRA
removed the provision initially

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proposed in the NPRM requiring
automated inspections of rail cant.
Instead, FRA chose to use ‘‘a
performance-based standard’’ for
automated inspections that would
indicate rail seat deterioration to the
accuracy specified by § 213.234, or 1⁄8 of
an inch, without mandating which
technology should be used. See 76 FR
18,076–18,077, 18,080–18,081 (Apr. 1,
2011).
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 1⁄8 of an inch of
rail seat deterioration.
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.5
Georgetown Rail Equipment Company
represents that their ‘‘scanning’’ system
5 See, e.g. ‘‘Rail Seat Abrasion Detection,
November 2008 Update, RSAC Meeting Nov. 19–20,
2008, by Richard Reiff, TTCI, AAR & BNSF
Cooperative Project (comparing detection systems
for rail seat abrasion, utilizing rail cant data or its
equivalent). For example, the presentation
compares the BNSF TGC85 car, the Holland
TrackStar, the FRA T–20 car, the FRA T–18, and
Georgetown Rail/Aurora systems. Also note the
availability of rail profile systems offered by
companies such as Plasser American, KLD Labs
Inc., MERMEC Inc., ENSCO, Inc., Holland Company
LP, and Georgetown Rail Equipment Company.

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utilizes laser imagery to ‘‘see’’ height
differences of ties, scanning both the
inside and outside of the crosstie.6 FRA
believes that BNSF may use this
‘‘scanning’’ system currently on parts of
its concrete crossties trackage. AAR’s
Petition included geometry car reports
for a track geometry car that operated
over BNSF’s Seadrift subdivision on
December 14, 2010, measuring rail cant.
See AAR Petition at 5, 25, 32. While
FRA’s system of calculating rail cant
cannot technically ‘‘measure’’ rail seat
deterioration, it does provide
indications of rail seat deterioration.
FRA realizes that the rule text is
technically incorrect to require that an
automated inspection measurement
system ‘‘measure’’ rail seat deterioration
to within 1⁄8 of an inch. FRA wishes to
clarify that it is requiring the automated
measurement system to ‘‘locate’’ rail
seat deterioration. It is up to the railroad
whether it will use rail cant to indicate
locations of rail seat deterioration, to
utilize the scanning capability that has
been proven effective at detecting
dangerous areas of rail seat
deterioration, or to use any other
demonstrated effective and accurate
technology.
FRA also recognizes that detecting rail
cant alone will not necessarily
demonstrate all possible locations of rail
seat deterioration. For example, FRA’s
geometry car will not find areas of rail
seat deterioration that are due to
compression forces from loads onto the
crosstie. However, FRA’s geometry car
will locate rail seat deterioration due to
rail cant in curved track, which are the
hardest areas to detect manually. The
automated inspection provision
contained in § 213.234 was never
intended to require railroads to detect
all areas of rail seat deterioration, but
rather to supplement manual visual
inspections.
Automated inspection technology is
able to detect rail seat deterioration to
an accuracy of 1⁄8 of an inch, as
demonstrated above. Furthermore, the
Final Regulatory Impact Analysis
explained in detail how FRA estimated
the costs of possible upgrades to
railroads’ existing technology or
equipment to detect rail seat
deterioration. See document number 6
in the public docket of this proceeding,
at 38. FRA believes that all Class 1
railroads, Class 2 railroads, intercity
passenger railroads, and commuter
railroads servicing a community greater
than 50,000 people currently conduct
automated geometry inspections of their
6 The scanning system measures the crosstie
voids against the nominal height of the crosstie
design, usually within a tolerance of 1⁄16 of an inch.

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track at frequencies roughly twice as
great as those required in the final rule.
Moreover, most major railroads with
concrete crossties already perform
automatic inspections to detect rail seat
deterioration (either through the rail
cant method or through the ‘‘scanning’’
method), and most of these railroads
already have equipment that can
measure within 1⁄8 of an inch of
accuracy.7 Thus, FRA denies AAR’s
request to delete the automated
inspection requirements contained in
§ 213.234, but FRA clarifies that by
requiring measurement of rail seat
deterioration, FRA actually meant that
the technology had to ‘‘indicate’’ rail
seat deterioration. Consequently, FRA
amends § 213.234(d) and (g)
accordingly.

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BMWED Petition: Whether FRA Should
Explicitly Require All Persons Fully
Qualified Under § 213.7, and Whose
Territories Are Subject to § 213.234
Automated Inspections, Be Provided
With a Copy of the Exception Report, or
That a Copy of Such Report Be Made
Readily Available to Such Persons
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. See BWMED Petition at 5–6.
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 fieldverify 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
7 For example, CSX contracts Holland Company
LP’s GRMS system to automatically inspect their
concrete crossties, which can measure rail cant up
to 1⁄2 of a degree (equivalent to 1⁄16 of an inch).
Additionally, some regional railroads contact FRA
to perform and receive the benefit of an automated
inspection, which can calculate up to 1⁄2 of a degree.
The rail profile systems offered by companies such
as Plasser American, KLD Labs Inc., MERMEC Inc.,
ENSCO, Inc., Holland Company LP, Georgetown
Rail Equipment Company report a rail cant
accuracy of approximately 1⁄16 of an inch at the rail
base/crosstie interface. FRA believes that all Class
1 railroads equip their geometry cars with these
systems to measure undesirable rail cant.

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‘‘[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 fieldverify 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.8
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 fieldverified exceptions are subject to all of
8 It is FRA’s understanding that most Class 1
railroads (e.g., Union Pacific Railroad Company,
Burlington Northern Santa Fe Railway) already
provide access to automated inspection reports to
49 CFR 213.7 inspectors in a given territory.

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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 fieldverification 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 or that a copy of the automated
inspection report be made readily
available. With this alteration, FRA
believes that BWMED’s request becomes
less burdensome on the railroads.
Railroads have an incentive to make
such automated inspection reports
available to track inspectors performing
frequency-based inspections because
this practice could ensure compliance
with the regulations and could prevent
worsening track conditions with costlier
repairs or potential accidents. If
inspectors have been provided with all
of the relevant information, inspectors
can better monitor problematic areas.
Further, as this is a good business
practice, most Class 1 railroads already
make these reports available to the
relevant inspectors. Given that the
benefits of making reports available to
all inspectors in the territory outweigh
the slight cost of requiring a railroad to
make the report available, which many
do already, FRA is amending the final
rule to explicitly require that railroads
make such reports available to all
relevant § 213.7 persons. The marginal
increase in cost of making the report
available compared with the added
benefit of allowing inspectors to note
defects earlier justify adding this
requirement.
To clarify FRA’s original intent and to
promote good industry practice, FRA
amends § 213.234(e) to require that

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exception reports be provided to or are
made available to all persons qualified
under § 213.7 and whose territories are
subject to the requirements of § 213.234.
BMWED Petition: Whether FRA Should
Adjust the Exception Testing Threshold
From 1⁄2 of an Inch to 3⁄8 of an Inch To
Compensate for the 1⁄8 of an Inch
Calibration Variance Allowed in
§ 213.234(d)(1)
BMWED asserts that ‘‘§ 213.234(d)(1)
has the affect [sic] of adding up to an
additional 1⁄8 of an inch to the proposed
maximum depth of 1⁄2 inch rail seat
deterioration prescribed under
§ 213.109(d)(4).’’ BMWED Petition at 2.
Thus, BMWED requests that FRA
‘‘compensate for the 1⁄8 inch calibration
variance’’ by requiring ‘‘the automated
exception report [to] record all
‘exceptions’ of 3⁄8 of an inch or greater,
and that all such exceptions be subject
to field verification under the provisions
of § 213.234(e).’’ BMWED Petition at 2–
3. BMWED contends that because of the
1⁄8 of an inch variance allowed by
§ 213.234(d)(1), exceptions may reach
up to 5⁄8 of an inch before automated
means would detect them. See BMWED
Petition at 5.
FRA accepts BMWED’s
recommendation that railroads must flag
locations identified as 3⁄8 of an inch or
greater on the automated exception
report, but FRA declines to require
field-verification of those areas noted on
the report that are less than 1⁄2 of an
inch. This additional notation will serve
as an alert to the inspectors of potential
problem areas to observe. Generally,
railroads already note locations on
automated reports in advance of the 1⁄2
of an inch violation level. For example,
BNSF already flags locations at 3⁄8 of an
inch with an alert. Adding an ‘‘alert’’ to
an automated exception report would be
a simple and low-cost modification. For
example, Rail Profile Measurement
System (RPMS) instrumentation on FRA
geometry cars are set to flag an advisory
exception when the angle exceeds four
degrees of negative or outward rail cant.
See 76 FR 18,081 (Apr. 1, 2011).
However, requiring field-verification of
locations flagged below 1⁄2 of an inch
would be inappropriate, as it would
impose too high of a cost without a
corresponding benefit to safety.
FRA estimates that there would be
approximately eight times as many
locations found at 3⁄8 of an inch than
those found at 1⁄2 of an inch. This
increase would result in eight times as
many field-verifications, and would
consequently represent a significant
increase in the economic burden.
Measurement errors are usually equally
distributed as positive and negative,

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meaning that having a target of 3⁄8 of an
inch would trigger exceptions that
actually measure 1⁄4 of an inch as often
as 1⁄2 of an inch. FRA notes that this
would cause unneeded inspections for
such false-positives at a high cost.
However, there are potential cost
savings, as the additional fieldverification may result in the repair of
an issue that would have been more
costly to repair later or could have
contributed to an accident. BMWED’s
Petition recommends that FRA adopt
something higher than a minimum
safety standard. If FRA takes violations
before the railroad is noncompliant, it
would be contrary to FRA’s enforcement
policy and would be interfering with the
railroad’s managerial discretion.
While railroads astutely demand
higher than minimum standards, FRA
only requires the minimum for safety
purposes. A location indicating rail seat
deterioration of 3⁄8 of an inch would
likely fall within a railroad’s
maintenance standard to watch or to
field-verify, but such field-verification
will not be mandated by FRA. FRA
agrees with BMWED that it would be a
good practice and thus mandates that
automated inspection equipment must
note all locations indicating rail seat
deterioration of 3⁄8 of an inch and greater
on the report, yellow-flagging, or
identifying ‘‘alerts’’ for, those areas
identified between 3⁄8 and 1⁄2 of an inch,
and red-flagging, or identifying
‘‘alarms’’ for, those areas identified at 1⁄2
of an inch and above. However,
subjecting all areas 3⁄8 of an inch and
above to field-verification would add
significant cost burdens without a
demonstrated safety benefit.
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
3⁄8 of an inch and 1⁄2 of an inch.
AAR Petition: Effective Date of the Rule
To Accommodate Railroad Training
Cycles
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).

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55823

Regulatory Impact and Notices
A. Executive Orders 12866 and 13563
and DOT Regulatory Policies and
Procedures
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. See 44 FR 11,034; February
26, 1979. For a more detailed
discussion, see 76 FR 18,082. This
response to the petitions for
reconsideration of the final rule is
likewise considered to be nonsignificant under both Executive Orders
12866 and 13563 and DOT policies and
procedures. This regulatory action
generally clarifies or makes technical
amendments to the requirements
contained in the final rule or allows for
greater flexibility in complying with the
rule.
B. Regulatory Flexibility Act and
Executive Order 13272
The Regulatory Flexibility Act of 1980
(the Act) (5 U.S.C. 601 et seq.) and
Executive Order 13272 require a review
of proposed and final rules to assess
their impact on small entities. Prior to
issuing the April 1, 2011 final rule, FRA
prepared and placed in the docket a
regulatory flexibility analysis which
assessed the small entity impact by the
rule. FRA certified in the final rule that
it expects there will be no significant
economic impact on a substantial
number of small entities. For a more
detailed discussion, see 76 FR 18,082.
This response to the petitions for
reconsideration of the final rule
generally clarifies the requirements
contained in the rule or allows for
greater flexibility in complying with the
rule. Consequently, FRA certifies that
this regulatory action is not expected to
have a significant economic impact on
a substantial number of small entities.
C. Paperwork Reduction Act
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
et seq. The section that contains the one
new and current information collection
requirements is noted below, and the
estimated burden time to fulfill each
requirement is as follows:

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Federal Register / Vol. 76, No. 175 / Friday, September 9, 2011 / Rules and Regulations
Respondent
universe

Total annual responses

Average time per
response

18 Railroads .................
18 Railroads .................
18 Railroads .................

150 reports ...................
150 field verifications ...
150 electronic reports ..

8 hours .........................
2 hours .........................
12 minutes ...................

1,200
300
30

18 Railroads .................

150 records ..................

30 minutes ...................

75

18 Railroads .................

18 procedures ..............

4 hours .........................

72

18 Railroads .................

2,000 trained employees.

8 hours .........................

16,000

CFR section

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213.234—Automated Inspection of Track Constructed with Concrete Crossties:
—Exception Reports .....................................
—Field Verified Exception Reports ..............
—Provision/Availability of Exception Reports
to Designated Persons (New).
—Records of Inspection Data and Exception Records.
—Procedures for Maintaining Data Integrity
Collected by Measurement System.
—Training of Employees in Handling Seat
Deterioration.

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: Robert.Brogan
@dot.gov; [email protected].
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: oira_submissions@
omb.eop.gov, mail to: victor.angelo@
fra.dot.gov.
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
Federal Register. Therefore, a comment
to OMB is best assured of having its full
effect if OMB receives it within 30 days
of publication.
FRA cannot impose a penalty on
persons for violating information
collection requirements which do not
display a current OMB control number,
if required. FRA intends to obtain
current OMB control numbers for any
new information collection
requirements resulting from this
rulemaking action prior to the effective
date of this final rule. The OMB control
number, when assigned, will be
announced by separate notice in the
Federal Register.
D. Environmental Impact
FRA has evaluated this action in
accordance with its ‘‘Procedures for
Considering Environmental Impacts’’

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(FRA’s Procedures) (64 FR 28,545, May
26, 1999) as required by the National
Environmental Policy Act (42 U.S.C.
4321 et seq.), other environmental
statutes, Executive Orders, and related
regulatory requirements. FRA has
determined that this action is not a
major FRA action (requiring the
preparation of an environmental impact
statement or environmental assessment)
because it is categorically excluded from
detailed environmental review pursuant
to section 4(c)(20) of FRA’s Procedures.
64 FR 28,547, May 26, 1999. In
accordance with section 4(c) and (e) of
FRA’s Procedures, the agency has
further concluded that no extraordinary
circumstances exist with respect to this
final rule that might trigger the need for
a more detailed environmental review.
As a result, FRA finds that this
regulation is not a major Federal action
significantly affecting the quality of the
human environment.
E. Federalism Implications
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

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Total annual
burden hours

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. See 76 FR 18,083. This response
to the petitions for reconsideration of
the final rule generally clarifies the
requirements contained in the rule or
allows for greater flexibility in
complying with the rule.
F. Unfunded Mandates Reform Act of
1995
Pursuant to Sec. 201 of the Unfunded
Mandates Reform Act of 1995 (Pub. L.
104–4, 2 U.S.C. 1531), each Federal
agency ‘‘shall, unless otherwise
prohibited by law, assess the effects of
Federal regulatory actions on State,
local, and tribal governments, and the
private sector (other than to the extent
that such regulations incorporate
requirements specifically set forth in
law).’’ Sec. 202 of the Act (2 U.S.C.
1532) further requires that ‘‘before
promulgating any general notice of
proposed rulemaking that is likely to
result in the promulgation of any rule
that includes any Federal mandate that
may result in the expenditure by State,
local, and tribal governments, in the
aggregate, or by the private sector, of
$100,000,000 or more (adjusted
annually for inflation) [currently
$140,800,000] in any 1 year, and before
promulgating any final rule for which a
general notice of proposed rulemaking
was published, the agency shall prepare
a written statement’’ detailing the effect
on State, local, and tribal governments
and the private sector. This response to
the petitions for reconsideration of the

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final rule will not result in the
expenditure, in the aggregate, of
$140,800,000 or more in any one year,
and thus preparation of such a
statement is not required.
G. Energy Impact
Executive Order 13211 requires
Federal agencies to prepare a Statement
of Energy Effects for any ‘‘significant
energy action.’’ See 66 FR 28,355 (May
22, 2001). Under the Executive Order a
‘‘significant energy action’’ is defined as
any action by an agency that
promulgates or is expected to lead to the
promulgation of a final rule or
regulation, including notices of inquiry,
advance notices of proposed
rulemaking, and notices of proposed
rulemaking: (1)(i) That is a significant
regulatory action under Executive Order
12866 or any successor order, and (ii) is
likely to have a significant adverse effect
on the supply, distribution, or use of
energy; or (2) that is designated by the
Administrator of the Office of
Information and Regulatory Affairs as a
significant energy action. FRA has
evaluated this response to petitions for
reconsideration of the final rule in
accordance with Executive Order 13211,
and has determined that this regulatory
action is not a ‘‘significant energy
action’’ within the meaning of the
Executive Order.

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H. Administrative Procedure Act
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.
I. Privacy Act Statement
Anyone is able to search the
electronic form of all comments
received into any of DOT’s dockets by
the name of the individual submitting
the comment (or signing the comment,
if submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
Statement published in the Federal
Register on April 11, 2000 (Volume 65,

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Number 70, Pages 19477–78), or you
may visit http://DocketsInfo.dot.gov.
List of Subjects in 49 CFR Part 213
Penalties, Railroad safety, Reporting
and recordkeeping requirements.
The Final Rule
In consideration of the foregoing, FRA
amends part 213 of chapter II, subtitle
B of title 49, Code of Federal
Regulations, as follows:
PART 213—[AMENDED]
1. The authority citation for Part 213
continues to read as follows:

■

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

2. Section 213.234 is amended by
revising the first sentence of paragraph
(a), and revising paragraphs (d), (e), and
(g), to read as follows:

■

§ 213.234 Automated inspection of track
constructed with concrete crossties.

(a) General. Except for track described
in paragraph (c) of this section, the
provisions in this section are applicable
on and after July 1, 2012. * * *
*
*
*
*
*
(d) Performance standard for
automated inspection measurement
system. The automated inspection
measurement system must be capable of
indicating and processing rail seat
deterioration requirements that specify
the following:
(1) An accuracy, to within 1⁄8 of an
inch;
(2) A distance-based sampling
interval, which shall not exceed five
feet; and
(3) Calibration procedures and
parameters assigned to the system,
which assure that indicated and
recorded values accurately represent rail
seat deterioration.
(e) Exception reports to be produced
by system; duty to field-verify
exceptions. The automated inspection
measurement system shall produce an
exception report containing a systematic
listing of all exceptions to
§ 213.109(d)(4), identified so that an
appropriate person(s) designated as
fully qualified under § 213.7 can fieldverify each exception.
(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.

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55825

(3) All field-verified exceptions are
subject to all the requirements of this
part.
(4) Exception reports must note areas
identified between 3⁄8 of an inch and 1⁄2
of an inch as an ‘‘alert.’’
*
*
*
*
*
(g) Procedures for integrity of data.
The track owner shall institute the
necessary procedures for maintaining
the integrity of the data collected by the
measurement system. At a minimum,
the track owner shall do the following:
(1) Maintain and make available to
FRA documented calibration procedures
of the measurement system that, at a
minimum, specify an instrument
verification procedure that ensures
correlation between measurements
made on the ground and those recorded
by the instrumentation; and
(2) Maintain each instrument used for
determining compliance with this
section such that it accurately provides
an indication of the depth of rail seat
deterioration in accordance with
paragraph (d)(1) of this section.
*
*
*
*
*
Issued in Washington, DC, on September 6,
2011.
Joseph C. Szabo,
Administrator.
[FR Doc. 2011–23133 Filed 9–8–11; 8:45 am]
BILLING CODE 4910–06–P

DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
49 CFR Part 571
[Docket No. NHTSA–2011–0139]
RIN 2127–AJ44

Federal Motor Vehicle Safety
Standards, Child Restraint Systems
National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule.
AGENCY:

This final rule, the first of two
under the designation RIN 2127–AJ44,
amends a provision in Federal Motor
Vehicle Safety Standard No. 213, ‘‘Child
restraint systems,’’ that permits NHTSA
to allow manufacturers of child restraint
systems (CRSs) manufactured before
August 1, 2010, to choose to have
NHTSA test the CRSs with either the
Hybrid II 6-year old child (H2–6C)
dummy or the Hybrid III 6-year-old
child (HIII–6C) dummy. This final rule
amends the provision to permit
manufacturers of currentlymanufactured CRSs the choice of

SUMMARY:

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