SUMMARY: FRA proposes to amend the Track Safety Standards in order to 
update and enhance its track safety regulatory program. These proposed 
amendments present additional regulatory requirements necessary to 
address today's railroad operating environment including the 
introduction of standards specifically addressing high speed train 
operations. FRA proposes these changes to improve track safety and 
provide the railroad industry with the flexibility needed to effect a 
safer and more efficient use of resources. The proposed amendments 
reflect consensus recommendations submitted to FRA by the Railroad 
Safety Advisory Committee.

DATES: Written comments: Written comments must be received before 
September 15, 1997. Comments received after that date will be 
considered to the extent possible without incurring additional expense 
or delay.
    Public hearing: A public hearing will be held in Washington, D.C. 
to allow interested parties the opportunity to comment on specific 
issues addressed in the NPRM. FRA will announce at a later date in this 
publication the date and location of the hearing.

ADDRESSES: Written comments: Comments should identify the docket number 
and the notice number and should be submitted in triplicate to: Docket 
Clerk, Office of Chief Counsel, Federal Railroad Administration, 400 
Seventh Street, S.W., Mail Stop 10, Washington, D.C. 20590. Persons 
desiring to be notified that their written comments have been received 
by FRA should include with their comments a stamped, self-addressed 
postcard. The Docket Clerk will indicate on the postcard the date on 
which the comments were received and will return the card to the 
addressee. Written comments will be available for examination during 
regular business hours in Room 7051 of FRA headquarters at 1120 Vermont 
Avenue, N.W., Washington, D.C.
    Public hearing: The date and location of the public hearing will be 
announced at a later date in this publication.

FOR FURTHER INFORMATION CONTACT: Allison H. MacDowell, Office of Safety 
Enforcement, Federal Railroad Administration, 400 Seventh Street, S.W., 
Mail Stop 25, Washington, D.C. 20590 (telephone: 202-632-3344), or 
Nancy Lummen Lewis, Office of Chief Counsel, Federal Railroad 
Administration, 400 Seventh Street, S.W., Mail Stop 10, Washington, 
D.C. 20590 (telephone: 202-632-3174).

SUPPLEMENTARY INFORMATION:

Introductory Statement

    The text of the following proposed rule was recommended to FRA by 
the agency's Rail Safety Advisory Committee (RSAC), a standing 
committee composed of 48 representatives of the rail industry, rail 
labor and other interested parties, as well as FRA. The committee is 
tasked by the Federal Railroad Administrator (the Administrator) to 
formulate and present to FRA recommendations for new regulations and 
revisions of existing ones. The committee operates under a set of 
procedures provided to and discussed with all its members when the RSAC 
was first established.
    In accordance with the procedures, the specific provisions of the 
proposed rule were developed by the Track Working Group, a subcommittee 
of the RSAC, which met periodically over a span of six months in 1996 
to discuss track safety issues, developments in the industry, and 
possible solutions to current safety challenges. Each provision 
contained in the proposed rule received unanimous approval by the 
members of the Track Working Group, which included approximately 30 
representatives from railroads, rail labor, trade associations, state 
government, track equipment manufacturers, and FRA. Such consensus is 
required by RSAC procedures before a proposal can be presented to the 
RSAC for consideration.
    On October 18, 1996, all RSAC members were provided copies of the 
Track Working Group's proposed rule for review. At a public meeting on 
October 31, 1996, the Track Working Group presented its proposed rule 
to the RSAC for approval to recommend it to the Administrator. After 
discussion, the RSAC agreed, at the request of the Brotherhood of 
Maintenance of Way Employes (BMWE), to defer the vote on whether to 
recommend the proposed rule to the Administrator to provide that 
organization additional time to inform its members. The RSAC conducted 
a formal vote by mail on November 21, 1996. At that time, 
representatives of many of the labor unions withdrew support of the 
proposed rule and recommended that it be returned to the Track Working 
Group for further discussion.
    Despite the lack of support by many RSAC representatives of rail 
labor, the number of votes cast in favor of recommending the proposed 
rule to the Administrator exceeded the number necessary for a simple 
majority. RSAC's procedures provide that where there is a majority vote 
to recommend to the Administrator a rule presented to the RSAC with 
full consensus of the working group that produced it, the RSAC will 
recommend adoption of the rule by the Administrator. Following those 
procedures, the RSAC formally recommended to the Administrator that FRA 
issue the proposed rule as it was drafted. The following proposed rule 
is the same rule text and preamble developed by the Track Working 
Group. However, the regulatory evaluation for the proposed rule varies 
somewhat from that submitted by the Track Working Group.
    The cost/benefit evaluation of a proposed rule that enjoys 
unanimous support by all of the affected parties may contain 
assumptions which would not be appropriate for an analysis of a 
proposed rule that receives less than unanimous support. For example, 
unanimous support makes it easier to assume that costs are justified by 
benefits where they may be difficult to quantify. The Track Working 
Group submitted to the RSAC its proposed rule and cost/benefit analysis 
as it was approved by the group with unanimous consensus. As noted 
above, however, in the RSAC vote, members who represent almost entirely 
one definable segment of the rail industry voted to recommend that the 
proposed rule be returned to the working group for additional work. 
While the Track Working Group's proposed rule received majority 
consensus in the RSAC, its cost/benefit analysis was based on a premise 
that it would receive unanimous consensus.
    In acknowledgment of the change in assumptions, FRA has attempted 
to incorporate additional data in the cost/benefit analysis that has 
been placed in the docket. The analysis cannot answer some important 
questions with the limited data now available. FRA requests that 
parties who have access to this data submit them to FRA during the 
comment period for this notice. Specifically, FRA requests the following additional information:
     What nonreportable accidents occur on excepted track? How 
many are there by category and what do they cost? How much excepted 
track does not comply with the proposed gage standard, and how much 
will it cost to bring it into compliance?
     What accidents have been caused by the use of personnel 
not qualified under Sec. 213.7 to move trains over defective track? How 
many are there by category and what do they cost? Have any accidents 
been caused by qualified personnel who have not received 
requalification training? How many are there by category and what do 
they cost?
     What accidents have been caused by torch-cut bolt holes in 
Class 2 track? How many are there by category and what do they cost?
     What accidents have been caused by torch-cut rails or 
joint bars reconfigured by torch cutting? How many are there by 
category and what do they cost?
     How many miles of track, by class would not comply with 
the proposed crosstie standard, and how much will it cost to bring them 
into compliance?
     What accidents have been caused by failure to operate a 
switch during inspections? How many are there by category and what do 
they cost?
     What accidents have been caused by inadequate inspection 
where the inspection involved inspection of multiple tracks from a hi-
rail vehicle? How many are there by category and what do they cost?
     What other data do you have concerning the areas addressed 
by the benefit/cost analysis?
Information pertaining to these subjects should be submitted to the 
Docket Clerk, Office of Chief Counsel, Federal Railroad Administration, 
400 Seventh Street, S.W., Mail Stop 10, Washington, D.C. 20590.
    With this notice, FRA proposes to revise the Track Safety 
Standards, 49 C.F.R. Part 213, using the proposed rule developed by the 
Track Working Group and recommended by majority consensus by the RSAC, 
including the preamble and the cost/benefit evaluation as modified by 
FRA. The proposed rule is as follows:

I. Statutory Background

    The Rail Safety Enforcement and Review Act of 1992, Public Law 102-
365,106 Stat. 972 (September 3, 1992), later amended by the Federal 
Railroad Safety Authorization Act of 1994, Public Law 103-440, 108 
Stat. 4615 (November 2, 1994), requires FRA to revise the track safety 
regulations contained in 49 CFR Part 213. Now codified at 49 U.S.C. 
Sec. 20142, the amended statute requires:
    ``(a) Review of Existing Regulations.--Not later than March 3, 
1993, the Secretary of Transportation shall begin a review of 
Department of Transportation regulations related to track safety 
standards. The review at least shall include an evaluation of--
    (1) procedures associated with maintaining and installing 
continuous welded rail and its attendant structure, including cold 
weather installation procedures;
    (2) the need for revisions to regulations on track excepted from 
track safety standards; and
    (3) employee safety.
    (b) Revision of Regulations.--Not later than September 1, 1995, the 
Secretary shall prescribe regulations and issue orders to revise track 
safety standards, considering safety information presented during the 
review under subsection (a) of this section and the report of the 
Comptroller General submitted under subsection (c) of this section.
* * * * *
    (d) Identification of Internal Rail Defects.--In carrying out 
subsections (a) and (b), the Secretary shall consider whether or not to 
prescribe regulations and issue orders concerning--
    (1) inspection procedures to identify internal rail defects, before 
they reach imminent failure size, in rail that has significant 
shelling; and
    (2) any specific actions that should be taken when a rail surface 
condition, such as shelling, prevents the identification of internal 
defects.''

II. Regulatory Background

    The first Federal Track Safety Standards were implemented in 
October, 1971, following the enactment of the Federal Railroad Safety 
Act of 1970 in which Congress granted to FRA comprehensive authority 
over ``all areas of railroad safety.'' See 36 FR 20336 and 49 U.S.C. 
20101 et seq. FRA envisioned the new standards to be an evolving set of 
safety requirements subject to continuous revision allowing the 
regulations to keep pace with industry innovations and agency research 
and development.
    FRA amended the Track Safety Standards with minor revisions several 
times in the past two decades. It began a project to revise the 
standards extensively in 1978, but later withdrew the effort when 
investigation revealed that considerably more data collection and 
analysis were necessary to support recommended revisions. A less 
extensive revision of the Track Safety Standards was issued in 
November, 1982. Since then, FRA has acquired much information crucial 
to further development of the Track Safety Standards through the 
enhanced statistical analysis capabilities resulting from additional 
field reporting requirements and improved data collection processes.

III. Petitions for Rulemaking

    In May, 1990, the Brotherhood of Maintenance of Way Employees 
(BMWE) filed a petition with FRA to revise the Track Safety Standards. 
The petition suggested substantive changes to the standards, the 
addition of new regulations addressing recent developments in the 
industry, as well as the reinstatement of many of the regulations 
deleted from the standards in 1982. The BMWE also petitioned FRA to 
further address employee safety by incorporating in the Track Safety 
Standards certain sections of the Occupational Safety and Health 
Standards presently administered by the U.S. Department of Labor.
    In March, 1992, the Association of American Railroads (AAR) 
submitted to FRA a list of recommended revisions to the Track Safety 
Standards. The AAR suggested some changes in the wording of existing 
regulations to provide additional flexibility to accommodate future 
innovations in railroad technology. Several suggested revisions 
included new approaches to determining compliance with certain existing 
regulations. Most notable among those was AAR's proposal that the 
revised track standards permit the use of a Gage Restraint Measuring 
System (GRMS) in place of detailed crosstie and fastener requirements. 
Lengthy discussions within the Track Working Group failed to result in 
any agreement about that proposal, and the RSAC postponed making a 
recommendation about the use of GRMS. On the other hand, RSAC 
recommended that railroads develop individual programs for installation 
and maintenance of continuous welded rail (CWR), provided those 
programs meet certain minimum criteria.

IV. Proceedings to Date

    On November 16, 1992, FRA published an Advance Notice of Proposed 
Rulemaking (ANPRM) in this docket. See 57 FR 54038. The ANPRM 
summarized FRA's knowledge about developments in the rail industry in 
the past two decades and then posed some 52 questions regarding how 
those developments should be addressed in the revised track safety 
standards.
    The ANPRM also announced plans for four public workshops in which technically-knowledgeable persons with specialized experience in track 
maintenance were invited to share their views with FRA in an informal 
setting. The workshops were fact-finding sessions comprised of informal 
give-and-take exchanges between industry, labor, and government 
professionals charged with the administration of the track safety 
standards on a day-to-day basis. They comprised an initial step by FRA 
to use more active collaboration with labor, railroad management, 
manufacturers, state governments, and public interest associations in 
structuring the revised regulations.
    The first workshop, held in Newark, New Jersey, on January 26, 
1993, addressed such topics as responsibility of track owners, 
inspection qualifications, restoration/renewal of track, and the 30-day 
period in Sec. 213.9. A second workshop in Atlanta, Georgia, on January 
28, 1993, covered such subjects as lateral track resistance, gage 
restraint measurement, and vehicle track interaction. In the third 
workshop held in Denver, Colorado, on February 23, 1993, topics 
discussed were defective rails/remedial action, internal rail 
inspection frequency, system tolerances and reliability, and torch cut 
rail. The fourth workshop, a two-day session in Washington, D.C. on 
March 30-31, 1993, covered such items of interest as excepted track, 
inspection requirements, definitions, and the safety of maintenance-of-
way employees.
    Participants in the workshops included representatives of major and 
short line railroads, the AAR, the American Short Line Railroad 
Association, the BMWE, as well as individuals with a particular 
interest in certain areas of the track safety standards. In addition to 
the workshops, FRA invited interested persons to submit written 
comments to the questions posed in the ANPRM. Approximately 30 
individuals, railroads, and industry groups submitted their suggestions 
and observations.
    Following the workshop in Washington, which included an extensive 
discussion about the safety of maintenance-of-way employees, FRA 
decided to isolate that issue from this proceeding so that it could be 
addressed thoroughly in a separate rulemaking. That issue became the 
focus of a proceeding addressing roadway worker safety, FRA's first 
negotiated rulemaking. FRA established its first formal regulatory 
negotiation committee in 1994. After months of discussions and debates, 
the committee reached consensus conclusions and recommended provisions 
for an NPRM to the Federal Railroad Administrator on May 17, 1995. An 
NPRM based upon those recommendations was published on March 14, 1996 
(see 61 FR 10528), and a final rule was issued on December 6, 1996 (see 
61 FR 65959).

V. The Railroad Safety Advisory Committee

    In past rulemakings, interested parties generally have approached 
the proceedings in an adversarial manner, a tactic that often inhibited 
the development of the best regulatory solutions to resolve difficult 
safety issues. In addition, parties also have resorted to pressuring 
Congress for legislation that would grant regulatory results with which 
FRA disagreed or were at odds with FRA's regulatory agenda. FRA 
concluded, therefore, that inclusion of these parties in its regulatory 
process would result in a more positive approach to developing the best 
solutions to pressing safety problems.
    Although FRA gathered much information in the 1993 track workshops, 
as well as in similar workshops associated with other rulemaking 
proceedings, the agency recognized that continued use of these ``ad 
hoc'' collaborative procedures for each rulemaking was not the most 
effective means of accomplishing the agency's goal of achieving a more 
consensual regulatory program. Following the success in 1995 of the 
negotiated rulemaking addressing roadway worker safety, FRA decided 
that several pending rulemakings, including this proceeding to revise 
Part 213, should advance under a new rulemaking model that relies upon 
consensus among various members of the affected industry and the 
regulated community. On March 11, 1996, FRA announced formation of the 
Railroad Safety Advisory Committee (RSAC), the centerpiece of the 
agency's new regulatory program which emphasizes rulemaking by 
consensus with those most affected by the agency's regulations. See 61 
FR 740.
    The RSAC is comprised of 48 individual representatives drawn from 
27 member organizations. The membership of the RSAC is representative 
of those interested in railroad safety issues, including railroad 
owners, manufacturers, labor groups, state government groups, and 
public interest associations. Its sponsor is the Federal Railroad 
Administrator, who recommends specific issues for it to address. The 
RSAC operates by consensus. It is authorized to establish smaller 
``working groups'' to research and initially address the issues 
recommended by the Federal Railroad Administrator and accepted by the 
RSAC to resolve.

VI. Track Working Group

    On April 2, 1996, the RSAC agreed to provide advice and 
recommendations to FRA for revision of the Track Safety Standards in 49 
CFR Part 213. The RSAC then assigned that responsibility to a 
specialized working group comprised of approximately 30 representatives 
from labor, railroads, trade associations, state government groups, 
track equipment manufacturers, and FRA.
    The Track Working Group met monthly from May, 1996, through 
October, 1996, to develop a draft NPRM to recommend to the RSAC. 
Minutes taken at each of the meetings are part of the docket for this 
rulemaking. The provisions contained in this document largely reflect 
the work accomplished by that group.
    The Track Working Group identified issues for discussion from 
several sources. One source of issues was, of course, the statutory 
mandates issued by Congress in 1992 and in 1994. Several issues came to 
the Track Working Group by way of requests for consideration made by 
FRA's track safety Technical Resolution Committee. The group also 
examined track issues involved in a number of recommendations made to 
FRA by the National Transportation Safety Board (NTSB) in the past 
decade. Discussions utilized information acquired by FRA through its 
research and development program, as well as from findings from routine 
agency investigations and accident investigations. Finally, the Track 
Working Group systematically surveyed the existing regulations to 
identify those sections and subsections that needed updating or, in 
some cases, deletion.
    Many of the issues engendered much discussion and debate within the 
Track Working Group. Brief summaries of those discussions are recorded 
in the appropriate parts of the section-by-section analysis portion of 
this document. Technical details supporting certain recommendations are 
not specified in this notice but are recorded in the docket and were 
discussed by the Track Working Group. A few issues have been designated 
by FRA to be ``major issues'' and are more fully discussed in the 
following section.

V. Major Issues

    This section contains FRA's analysis of a number of significant 
issues that arose in this rulemaking. The analysis is based upon (1) 
discussions by the Working Group and RSAC; (2) comments, both oral and written, received by the agency following 
publication of the ANPRM; (3) past statements of agency policies; (4) 
legal research; and (5) agency compliance experience.

A. Continuous Welded Rail (CWR)

    In the first track safety standards published in 1971, Sec. 213.119 
dealt with CWR in a rather general manner, stating simply that CWR must 
be installed at a rail temperature that prevents lateral displacement 
of track or pull-aparts of rail ends, and that it should not be 
disturbed at rail temperatures higher than the installation or adjusted 
installation temperature. (See 36 FR 20341.) In 1979, when FRA proposed 
a significant revision of Part 213, the agency suggested that this 
subsection be eliminated because it provided ``little guidance to 
railroads'' and was ``difficult to enforce.'' The agency further stated 
that research had ``not advanced to the point where specific safety 
requirements can be established.'' (See 44 FR 52114.) However, when the 
proposed revision was withdrawn in 1981 (see 46 FR 32896), the proposal 
to eliminate Sec. 213.119 was also abandoned. In the November, 1982 
revisions to the Track Safety Standards Sec. 213.119 was deleted.
    In the Rail Safety Enforcement and Review Act of 1992, Congress 
mandated FRA to evaluate procedures for installing and maintaining CWR. 
In 1994, in the Federal Railroad Authorization Act, Congress added an 
evaluation of cold weather installation procedures to that mandate. 
Following evaluation of those procedures, FRA proposes to return CWR 
procedures to Part 213.
    CWR is naturally subjected to high compressive and tensile forces 
which, if not adequately restrained, can result in track buckling or 
pull-aparts. The potential for track buckling increases as the ambient 
air temperature increases while the potential for pull-aparts increases 
as the ambient air temperature decreases. Track buckling tends to occur 
under train movement and therefore can be instantaneous and somewhat 
unpredictable.
    In recent years, FRA engaged in a research program to develop 
criteria and guidelines for improving CWR's resistance to buckling. The 
program sought to (1) define critical forces and conditions associated 
with track buckling, (2) quantify parameters which govern the 
resistance of track to buckling, and (3) develop technology to detect 
incipient failures prior to track buckling. Railroads have also 
invested considerable resources into CWR research and employee training 
which has resulted in a marked decrease in the number of reportable 
buckled track incidents over the last decade. FRA's Accident/Incident 
data base reveals that the number of reportable buckled track 
derailments has been reduced by approximately 50% since 1985, dropping 
from a yearly average of approximately 60 instances to approximately 30 
such occurrences per year.
    How a railroad provides the adequate lateral resistance to prevent 
track buckling may vary from railroad to railroad. The Track Working 
Group found that consistent methodology is not as important as 
effective methodology in installing and maintaining CWR. Therefore, the 
Track Working Group's recommendations are premised on the concept that 
the regulations should provide railroads with as much flexibility as 
safely feasible. The proposed standard, contained in a new subsection 
(Sec. 213.119), allows railroads to develop and implement their 
individual CWR programs based on procedures which have proven effective 
for them over the years. At a minimum, procedures shall be developed 
for the installation, adjustment, maintenance, and inspection of CWR, 
as well as a training program and minimal requirements for 
recordkeeping. FRA proposes to monitor the railroads adherence to these 
procedures as well as the overall effectiveness of the CWR programs.

B. Excepted Track

    With some limitations, the current regulation permits railroads to 
designate track as ``excepted'' from compliance with minimum safety 
requirements for roadbed, track geometry and track structure. This 
provision was intended to allow for limited periods of operation over 
track that was scheduled for abandonment or later improvement, and to 
permit operations over low density branch lines and related yard tracks 
in areas where it is highly unlikely that a derailment would endanger 
persons along the right-of-way. In general, the purpose of this 
provision has been realized.
    However, the excepted track provision was not tightly drawn when 
added in 1982. Critics of the present provision argue that it permits 
tolerance of unsafe track conditions. For instance, trackage designated 
as ``excepted'' sometimes traverses residential areas or exists within 
close proximity to major population centers, and hazardous materials 
frequently are moved over these tracks with some regularity.
    FRA added the excepted track provision (Sec. 213.4) to the 
regulations in response to an industry outcry for regulatory relief on 
those rail lines producing little or no income. FRA believed that 
without some relief for low density lines, railroads would accelerate 
abandonment of those lines rather than invest their slim resources 
where returns would be limited. Therefore, the 1982 revision provided 
the industry with a means to operate over designated tracks without 
complying with the substantive requirements of the Track Safety 
Standards. FRA believed that the designated tracks would be located on 
comparatively level terrain in areas where the likelihood was remote 
that a derailment would endanger a train crew or the general public.
    The current provision contains a number of operating restrictions, 
including limitations on where excepted track can be located and the 
number of cars containing hazardous materials (five) that can be hauled 
in one train. Maximum speed is 10 m.p.h., and passenger service is 
prohibited.
    Despite these limitations, railroads have embraced the concept of 
excepted track. In 1992, an FRA survey revealed the existence of 
approximately 12,000 miles of designated excepted track nationwide, far 
more than FRA envisioned when the provision was added to the 
regulations. Recent surveys conducted by the AAR and ASLRA, which were 
distributed to the Working Group members, currently indicate that 
between 8,000 and 9,000 miles of excepted track presently exists 
nationwide. FRA inspectors frequently find that railroads' legal use of 
the excepted track provision is far from the provision's original 
intent and purpose.
    Comments given in response to the ANPRM, as well as some opinions 
expressed within the Track Working Group, demonstrate that many 
railroads favor maintaining an excepted track provision in the Track 
Safety Standards. They argue that accident and injury data do not 
support the notion that trackage in ``excepted'' status presents any 
significant safety hazard. Short line railroads strenuously argue that 
they depend on the provision in order to keep certain track segments in 
business. Many short lines operate over track they acquired just before 
abandonment by a major railroad. A significant number of those lines 
serve only a handful of industries with comparatively small gross 
tonnage. Eliminating the excepted track provision may result in the 
demise of service to many short line railroad shippers, thus prompting 
an increase in rail traffic switching to highway transportation.
    Others, however, favor abolishing the excepted track provision 
because they believe it promotes tolerance of poor maintenance 
practices and hazardous track conditions. Approximately 65% of all 
reportable derailments on excepted track from 1988 through the third 
quarter of 1995 were track-caused. Of this total, nearly 33% were 
attributed to wide gage as a result of defective crossties or rail 
fasteners. FRA and state inspectors have found instances where 
railroads have taken advantage of the permissive language in the 
section to conduct operations in a manner not envisioned by the 
drafters of the provision. For example, a railroad removes a segment of 
track from the excepted designation only long enough to move a train 
with more than five cars carrying hazardous materials, or to operate an 
excursion passenger train, and then replaces the segment in excepted 
status as soon as the movement is completed. However, FRA's enforcement 
policies and railroad compliance have reduced these instances.
    For those reasons, the Track Working Group advised that the 
excepted track provision be retained with certain new restrictions. 
Significant revision proposed for Sec. 213.4 includes a new requirement 
that the track owner must maintain gage to a 58\1/4\'' standard, 
perform periodic switch inspections, and provide FRA with notification 
10 days prior to removing track from excepted status. The revision also 
proposes to change the word ``revenue'' to ``occupied'' in describing 
passenger trains prohibited from operating over excepted track.

C. Liability Standard

    The current track regulations are enforced against a track owner 
``who knows or has notice'' that the track does not meet compliance 
standards. This knowledge standard is unique to the track regulations; 
other FRA regulations are based on strict liability. The knowledge 
standard is founded on the notion that railroads should not be held 
responsible for defects that may occur suddenly in remote locations. 
Today, after years of track abandonments by major railroads, the 
industry is responsible for maintaining about 200,000 miles of track. 
Many defects occur suddenly in remote areas, making it difficult for 
even the most diligent track inspectors to keep pace with all defects 
as they happen.
    With a knowledge standard attached to the track regulations, 
railroads are held liable for non-compliance or civil penalties for 
only those defects that they knew about or those that are so evident 
the railroad is deemed to have known about them. FRA and state 
inspectors meet this knowledge standard in a number of ways. Sometimes 
they record and notify a railroad of a defect that they find, and then 
re-inspect 30 days later to see if the defect has been repaired. If it 
has not, they cite the railroad for a violation of the track safety 
standards. While this method provides a failsafe way of proving 
railroad notice of a defect, it is not always practicable for 
inspectors to perform follow-up inspections 30 days later.
    Often, inspectors choose to inspect the railroad's own inspection 
records to see if a defect they have noted is recorded there. If it is, 
the inspection record forms proof that the railroad had notice of the 
defect. If the defect is not recorded in the railroad's inspection 
records, but is of the nature that it would have had to exist at the 
time of the railroad's last inspection (for example, defective 
crossties or certain breaks that are covered with rust), the defect's 
existence constitutes constructive knowledge by the railroad and the 
railroad is cited for a violation. Although these inspection methods 
are not enunciated in the regulations themselves, they reflect long-
standing FRA enforcement policy and are explained in FRA's Track 
Enforcement Manual.
    In its petition, the BMWE suggested that FRA put track owners under 
strict liability standard by removing the phrase ``knows or has 
notice'' from Sec. 213.5. Under that standard, any defect found by an 
FRA inspector could be written as a violation regardless of the 
railroad's ignorance of it. The AAR requested in its petition that FRA 
develop performance standards for the track regulations. Certain 
defects would not be cited as long as the track is performing safely, 
making unnecessary many of the regulations (for example, inspection 
requirements and the minimum number of crossties). Neither the BMWE nor 
the AAR provided FRA with cost/benefit information to support their 
respective requests.
    This notice proposes to adopt the recommendation by the Track 
Working Group and the RSAC to leave the standard of liability unchanged 
as the best balance of all interests. Railroads will continue to be 
held liable for track defects of which they knew or had notice. Notice 
may include constructive knowledge of defects that, by their nature, 
would have had to be in existence when the railroad was last required 
to perform an inspection.

D. Plant Railroads and Industrial Spurs

    FRA has elected not to exercise jurisdiction over the safety of 
railroads that conduct their operations exclusively within an 
industrial or military installation. Such operations have not 
demonstrated the same degree and frequency of track problems found on 
tracks in the general system which are subject to heavier tonnages and 
more frequent use. Nevertheless, FRA recognizes its responsibility for 
the safety of railroad employees and operations inside such facilities 
where a general system railroad provides service on that property, 
either by picking up and placing cars for transportation in interstate 
commerce or by switching for the plant. The same responsibility applies 
to operations on privately owned industrial spurs used exclusively by a 
main line railroad to serve an industry.
    The applicability section of the current Track Safety Standards 
(Sec. 213.3) excludes track ``located inside an installation which is 
not part of the general railroad system of transportation.'' This broad 
statement implies that the track standards do not apply anywhere inside 
a plant, regardless of who operates there or the type of operations 
that occur on the plant track. However, Sec. 213.3 must be read in 
conjunction with 49 CFR Part 209, Appendix A, which explains that any 
plant railroad trackage over which a general system railroad operates 
becomes subject to FRA regulations. With the entrance of a general 
system railroad, the plant loses its insularity.
    Since the enactment of the Federal Railroad Safety Act of 1970, FRA 
has had at its disposal statutory authority to issue emergency orders 
to repair or discontinue use of industrial or plant trackage should the 
agency find that conditions of the track pose a hazard of death or 
injury. See 49 U.S.C. Sec. 20901. It is FRA's opinion that this 
emergency order authority is sufficient power to ensure track safety 
within plants or installations. However, if conditions or events in the 
future tend to demonstrate that track safety within plants or 
installations should be more specifically regulated, FRA will seek to 
change the applicability of this Part in a future rulemaking. This 
notice proposes to leave the application section of the Track Safety 
Standards unchanged.

E. Tourist Railroads

    Congress granted FRA authority over all railroads, including 
tourist railroads, in 1970 when it enacted the Railroad Safety Act, now 
codified at 49 U.S.C. Sec. 20102 et seq. In the 1970's and early 1980's, tourist railroads were few in number, and the agency decided to 
direct its manpower and resources towards ensuring safety on the 
freight carriers and major passenger lines. As the 1980's progressed, 
FRA began to witness a proliferation of tourist operations ranging in 
description from very small operations carrying only a handful of 
passengers a few days every year to large operations transporting 
hundreds of passengers daily. Many are financially constrained and 
dependent on volunteer labor, but others garner significant revenues 
from transportation of thousands of riders. The tourist railroad 
industry itself estimates that such railroads carry four to five 
million passengers each year.
    In 1992, FRA developed a policy for exercise of agency jurisdiction 
over tourist railroads. The policy provides that FRA will exercise 
jurisdiction over all tourist railroad operations except those that are 
less than 24 inches in gage and/or insular. An insular tourist railroad 
is one where operations are limited to a separate enclave in such a way 
that they engender no reasonable expectation that the safety of any 
member of the public (except a business guest, a licensee or affiliated 
entity, or a trespasser) would be affected. An insular railroad cannot 
have a public highway-rail crossing in use, an at-grade rail crossing 
in use, a bridge over a public road or commercially navigable waters, 
or a common corridor of 30 feet or less with another railroad.
    The current Track Safety Standards apply only to those tourist 
railroads that operate on the general system. Nevertheless, the Track 
Safety Standards serve as benchmarks for evaluating the safety of 
trackage off the general system.
    In 1992, the Berkshire Scenic Railway Museum of Lenox, 
Massachusetts, petitioned FRA to conduct a special proceeding on all 
safety issues related to tourist railroads, suggesting that FRA phase 
in Class 1 track standards for those non-general system properties to 
which the standards do not currently apply. FRA denied the petition for 
a special proceeding because of the agency's many rulemaking 
commitments. However, FRA indicated a willingness to consider 
suggestions for modification of safety standards for tourist railroads 
within rulemaking proceedings already planned or underway.
    In 1994, representatives of the tourist railroad industry proposed 
to Congress that it amend certain parts of 45 U.S.C. Sec. 431, now 
recodified at 49 U.S.C. Secs. 20101-20103, wherein FRA, through the 
Secretary of Transportation, is granted plenary authority over the 
safety of all railroads. The proposed legislation would have excluded 
tourist railroads from Federal safety laws even if they operate over 
the general system, as long as they do not ``interchange traffic'' with 
the general system. Thus, an unregulated tourist train could operate on 
the same track as a freight train, Amtrak, or commuter railroad. 
Congress agreed that such a change would not be wise safety policy. 
However, Congress also recognized that tourist railroads sometimes have 
unique characteristics that affect how they comply with Federal safety 
laws. Therefore, in enacting the Federal Railroad Safety Authorization 
Act of 1994, Congress instructed FRA to consider ``factors that may be 
unique'' to tourist railroads when prescribing safety regulations that 
would apply to those railroads. See 49 U.S.C. Sec. 20103. Of course, 
FRA had already made an informal commitment to the industry to consider 
their unique factors in ongoing and future rulemakings.
    FRA estimates that approximately 95 tourist railroads operating 
over 1,350 miles of standard gage track off the general system are not 
currently subject to the track safety standards. FRA sees the need to 
address this growing market and increasing safety exposure in the area 
of track safety, as well as other areas of rail operation. In April, 
1996, the agency referred tourist railroad safety issues to the RSAC. 
The RSAC, in turn, established a working group comprised of agency and 
tourist railroad industry representatives to analyze the industry's 
unique aspects and formulate recommendations for appropriate regulation 
of that specialized industry. Because this working group will 
investigate and examine issues of track safety on tourist railroads, 
the Track Working Group decided not to discuss the subject. If the 
Tourist Railroad Working Group sees the need to propose changes to Part 
213 to accommodate that industry, it will recommend to RSAC that FRA 
initiate a separate rulemaking to address those issues. Therefore, this 
notice proposes no changes to the Track Safety Standards that are 
directed specifically to tourist railroads.

F. Train Speed/Preemption

    Under the current Track Safety Standards, FRA has only an indirect 
role in determining speed limits. Railroads set train speed in their 
timetables or train orders. Once a railroad sets a train speed, it must 
then maintain the track according to FRA standards for the class of 
track that corresponds to that train speed. The signal and train 
control regulations also fix limits on train speed based upon the type 
of signal system that is in place. If the railroad fails to comply with 
track or signal system requirements for speed at which trains are 
operated, the railroad is subject to penalty.
    FRA's current regulations governing train speed do not afford any 
adjustment of train speeds in urban settings or at grade crossings. 
This omission is intentional. FRA believes that locally established 
speed limits may result in hundreds of individual speed restrictions 
along a train's route, causing train delays and increasing safety 
hazards. The safest train maintains a steady speed. Every time a train 
must slow down and then speed up, safety hazards, such as buff and 
draft forces, are introduced. These kinds of forces can enhance the 
chance of derailment with its attendant risk of injury to employees, 
the traveling public, and surrounding communities.
    FRA always has contended that Federal regulations preempt any local 
speed restrictions on trains. Section 20106 of Title 49, United States 
Code (formerly 45 U.S.C. Sec. 434) declares that--
    ``[l]aws, regulations, and orders related to railroad safety shall 
be nationally uniform to the extent practicable. A State may adopt or 
continue in force an additional or more stringent law, regulation, or 
order related to railroad safety when the law, regulation, or order--
(1) is necessary to eliminate or reduce an essentially local safety 
hazard; (2) is not incompatible with a law, regulation, or order of the 
United States Government; and (3) does not unreasonable burden 
interstate commerce.''

FRA's long-held belief that Part 213 preempts local speed laws was 
verified by the U.S. Supreme Court in 1993 in the case CSX v. 
Easterwood, 507 U.S. 658 (1993). The Court held that legal duties 
imposed on railroads by a state's common law of negligence fall within 
the scope of preemption provision of 49 U.S.C. 20106, which preempts 
any state ``law, rule, regulation, order or standard relating to 
railroad safety.'' The Court said that preemption of such state laws 
``will lie only if the federal regulations substantially subsume the 
subject matter of the relevant state law.'' Easterwood, 664. However, 
the Court further stated that because Part 213 ties certain track 
requirements to train speed, it should be viewed as ``covering the 
subject matter'' of speed limits.
    Notwithstanding some of the language in Easterwood that a cursory 
reading may otherwise indicate, FRA has never assumed the task of setting train speed. Rather, the agency holds 
railroads responsible for minimizing the risk of derailment by properly 
maintaining track for the speed they set themselves. For example, if a 
railroad wants its freight trains to operate at 59 m.p.h. between two 
certain locations, it must maintain the tracks between those locations 
to Class 4 standards.
    In recent years, FRA has encountered increasing pressure from 
communities along railroad rights-of-way to set slower train speeds on 
main tracks located in urban areas. They typically cite the inherent 
dangers of grade crossings, as well as the risk of derailments of rail 
cars containing hazardous materials.
    As to grade crossings, FRA has consistently maintained that their 
danger is a separate issue from train speed. The physical properties of 
a moving train virtually always prevent it from stopping in time to 
avoid hitting an object on the tracks regardless of the speed at which 
the train is traveling. Prevention of grade crossing accidents is more 
effectively achieved through the use of adequate crossing protection 
and through observance by the driving public of crossing restrictions 
and precautions. Therefore, FRA continues to sponsor and/or support 
initiatives to improve safety at grade crossings under the Department 
of Transportation's Grade Crossing Action Plan. These initiatives are 
geared towards enhancing enforcement of traffic laws at crossings, 
closing unneeded crossings, enhancing rail corridor crossing reviews 
and improvements, expanding public education and Operation Lifesaver 
activities, increasing safety at private crossings, improving data and 
research efforts, and preventing rail trespassing.
    In January, 1995, FRA implemented regulations for maintenance, 
inspection and testing of warning devices at crossings, such as lights 
and gates. See 59 FR 50086. The agency also implemented regulations 
requiring certain locomotives to be equipped with auxiliary lights 
making trains more visible to motorists, railroad employees, and 
pedestrians. See 61 FR 8881. FRA believes that these measures are more 
effective approaches to enhancing safety at grade crossings than an 
attempt to design speed limits for each geographic situation.

G. Vegetation

    The vegetation control requirements of Part 213 currently deal with 
fire hazards to bridges, visibility of railroad signs and signals, 
interference with normal trackside duties of employees, proper 
functioning of signal and communication lines, and the ability to 
inspect moving equipment (``roll by'' inspections). The regulation does 
not address the issues of motorists' ability to see warning devices at 
highway-rail crossings.
    Since 1978, accidents and fatalities at highway-rail grade 
crossings have decreased dramatically due to engineering improvements 
at individual crossings, education of the public, and greater 
enforcement of highway traffic laws. Nevertheless, FRA finds that the 
present loss of life, injuries, and property damage are still 
unacceptable. In 1995, 579 people were killed, and 1,894 suffered 
serious injuries in grade crossing accidents. Highway-rail collisions 
are the number one cause of death in the entire railroad industry, far 
surpassing employee or passenger fatalities.
    In lengthy discussions about vegetation at grade crossings, the 
Track Working Group found itself grappling with a very complex issue 
that cannot be resolved simply by requiring brush to be cut away from 
grade crossings. The Track Working Group considered a proposal which 
would have set sight distances for motorists approaching highway rail 
grade crossings. However, the group quickly realized that the issue 
requires the expertise of entities not represented on the Track Working 
Group or RSAC, e.g., state and federal highway designers, traffic 
engineers, as well as representatives of local jurisdictions with grade 
crossings. This notice, therefore, proposes only one addition to 
current requirements of railroads in maintaining vegetation. Under this 
proposal, railroads will be required also to clear vegetation away from 
signs and signals on railroad rights-of-way at grade crossings. Because 
the scope of Part 213 limits vegetation requirements to railroad 
property, this proposal does not attempt to dictate standards for 
surrounding landowners. The additional language is intended only to 
cover the clearing of vegetation at highway-rail grade crossings to 
provide adequate visibility of railroad signs and signals; it is not 
intended to cover or preempt state or local requirements for the 
clearing of vegetation on railroad rights-of-way at highway-rail grade 
crossings.
    The RSAC views this proposed requirement as a first of several 
regulatory steps to reduce the inherent dangers of highway rail grade 
crossings. Along with the proposal for this additional requirement, the 
RSAC, following a recommendation by the Track Working Group, has 
requested that the FRA Administrator recommend that the Department of 
Transportation initiate a joint regulatory proceeding by FRA and the 
Federal Highway Administration to address vegetation maintenance and 
sight distances for motorists at grade crossings. Should the Department 
of Transportation decide not to initiate such a regulatory project, FRA 
will then consider the next appropriate action which may include 
launching its own regulatory proceeding.

H. Trackside Walkways

    The Track Working Group agreed that it was not prepared at this 
time to recommend to the RSAC whether or not this proceeding should 
address trackside walkways. Therefore, this notice does not include any 
proposals or discussions addressing this issue.

I. Gage Restraint Measurement System

    Historically, railroads assess a track's ability to maintain gage 
through visual inspections of crossties and rail fasteners. However, 
the inability of the track structure to maintain gage sometimes becomes 
apparent only after a derailment occurs. Many railroads throughout the 
country have successfully tested the GRMS, which was developed under a 
joint FRA/industry research project.
    Accident statistics taken from FRA's Annual Accident/Incident 
Bulletins reveal that from 1985 through 1995, reportable wide gage 
derailments from defective crossties and fasteners totaled 2,232 
instances and cost the industry over 60 million dollars in damages.
    Current crosstie and fastener maintenance techniques rely heavily 
on visual inspections by track inspectors, whose subjective knowledge 
is based on varying degrees of experience and training. The subjective 
nature of those inspections sometimes create inconsistent 
determinations about the ability of individual crossties and fasteners 
to restrain track gage. Crossties may not always exhibit strong 
indications of good or bad condition. If a crosstie in questionable 
condition is removed from track prematurely, its maximum service life 
is unnecessarily shortened resulting in added maintenance costs for the 
railroad. Yet, a crosstie of questionable condition left too long in 
track can cause a wide-gage derailment with its inherent risk of injury 
to railroad personnel and passengers and damage to property. In many 
instances of gage failure caused by defective crossties and/or 
fasteners, the static or unloaded gage is within the limits prescribed 
by the current track standards. However, when a train applies an 
abnormally high lateral load to a section of track that contains marginal crosstie or fastener conditions, the result is often a wide 
gage derailment.
    In 1993, FRA granted CSX Transportation a waiver of compliance for 
the purpose of conducting a test program to evaluate the GRMS 
performance-based standard using FRA's research vehicle, in lieu of 
existing crosstie and rail fastening requirements, on nearly 500 miles 
of various track segments. The experience gained under this waiver has 
provided FRA with the opportunity to continually make adjustments to 
the conditional requirements of the waiver to the point where the 
technology has proven itself to be a more consistent method of 
objectively determining crosstie and fastener effectiveness. FRA 
believes the technology is now ready to be deployed within the 
industry.
    Recently, CSX Transportation contracted for the design and 
construction of a GRMS vehicle which has been approved by FRA for the 
purposes of testing over the same waiver territory. CSX has contracted 
for a second GRMS vehicle to be built, and several other Class 1 
railroads have also contracted for the development of GRMS vehicles. 
The key issue before the Working Group was whether this technology 
should be used as a supplement to the existing crosstie and fastener 
requirements, as an alternative to these existing requirements, or some 
combination of both.
    The Track Working Group could not reach consensus on whether or not 
the revised standards should contain language to accommodate this 
technology. The RSAC has recommended that a small task group continue 
evaluating the possibility of developing GRMS standards for broader 
application within the industry. This notice invites public comment 
regarding the feasibility of this technology as an alternative 
inspection standard or as an additional inspection method.

J. High Speed Rail Standards

    By this notice, FRA proposes to facilitate further development of 
high speed rail transportation by instituting safety standards for 
track to be used by high speed trains. Current regulations contain six 
classes of track that permit passenger and freight trains to travel up 
to 110 m.p.h. Passenger trains have been allowed to operate at speeds 
over 125 m.p.h. under conditional waiver granted by FRA. This notice 
proposes to add three new classes of track that will designate 
standards for track over which trains may travel at speeds up to 200 
m.p.h. Standards for high speed track classes will be contained in a 
new Subpart G of Part 213 which will cover track Classes 6 through 9.
    These proposed track standards constitute only one of several 
components comprising a regulatory program permitting trains to travel 
at high speeds. Other factors FRA must address in regulations outside 
of Part 213 include passenger emergency preparedness, wheel conditions, 
braking systems, and grade crossings. These proposed standards are an 
integral part of that larger regulatory scheme.
    FRA's approach to track safety standards for high speeds is based 
on the fundamental principle that vehicles in the high speed regime 
must demonstrate that they will not exceed minimum vehicle/track 
performance safety limits when operating on specified track. In 
addition, railroads must monitor the vehicle/track system to ensure 
that the safety limits will be met under traffic conditions.
    A panel of experts in high speed rail transportation worked with 
the Track Safety Working Group to provide recommendations for vehicle/
track performance limits and track geometry. The panel identified 
acceleration and wheel/rail force safety criteria by reviewing 
technical studies, considering foreign experience and practices, and 
performing independent computer simulation and analytical studies. Once 
it identified vehicle/track performance limits, the panel developed 
specific geometry safety criteria. The panel also recommended 
requirements necessary for track structure to sustain the forces 
generated by vehicles at high speeds.
    FRA's proposes to use the best available technical data about 
dynamic performance of vehicle/track systems to develop safety 
standards that are practical to implement. The proposed high speed 
standards in this notice provide for the qualification of vehicles; 
geometry standards for gage, surface, and alignment; track structure; 
and inspection requirements for both automated and visual inspections. 
While some of the sections in the proposed Subpart G are identical to 
their counterparts in other sections of the regulation, the standards 
for high speed operations generally differ markedly from those for the 
lower track classes which cover a much broader range of railroad 
vehicles. Several sections are unique to the high speed environment, 
and other sections are adapted from requirements for the lower track 
classes.

K. Torch Cut Rails

    This notice addresses the practice by some railroads of using a 
torch to cut rail, a practice that was widespread in the railroad 
industry until a few years ago. Now the practice is used by most 
railroads only for emergency repairs in Classes 3 through 5 track, 
because technology has advanced to the point where cutting rail with 
the various types of rail saws that are readily available is more 
efficient than torch cutting. Nevertheless, torch cuts from years ago 
when the practice was more prevalent still exist and are believed by 
some to pose a safety hazard. In 1983, following its investigation of 
an Amtrak derailment in Texas, the NTSB recommended that torch cuts be 
removed and that trains move at only 10 m.p.h. over torch cuts made in 
emergency situations or as a preparatory step in field welding. It 
should be noted, however, that the rail involved in the Texas accident 
had a type of high alloy content which the industry now recognizes as 
inferior. It is no longer used in the industry.
    Because rails that have been torch-cut have a greater tendency to 
develop fractures in the short term, members of the Track Working Group 
all agreed that the practice of torch-cutting rails should be 
prohibited in the future in Classes 3 through 5 track. However, they 
found it more difficult to agree on recommendations about what to do 
with existing torch cuts. Labor union representatives on the Track 
Working Group cited the known danger of torch cut rails in first 
suggesting that they all be removed from track in Classes 3 through 6. 
On the other hand, railroad representatives argued that torch cuts tend 
to cause rail to fail early. They also asserted that torch cuts that 
have existed for a long time generally will not cause rail breakage.
    All parties agreed that torch cuts existing on yard tracks and main 
tracks where trains operate at slow speeds (Classes 1 and 2) do not 
pose as high a risk. FRA could provide no reliable data on the number 
of existing torch cuts. The railroads reported that torch cuts no 
longer exist on Class 6 track, and the torch cuts remaining in Class 5 
track nationwide probably number ``in the hundreds.''
    The Track Working Group agreed to recommend to the RSAC that 
existing torch cuts in track Classes 1 and 2 be allowed to remain. 
However, the practice of torch cutting rails in track Classes 3 and 
above, except for emergency temporary repairs, will be prohibited in 
the future. Existing torch cuts in Class 3 track over which regularly 
scheduled passenger trains operate will be inventoried and any torch 
cuts that are found later but are not listed on the inventory must be 
removed. Torch cuts in Class 4 track must be removed within two years of the effective date of this rule, 
and torch cuts in Class 5 track must be removed within one year. The 
RSAC and FRA adopted this proposal, further discussed in the Section-
by-Section portion of this notice.

L. Metric System

    In the 1992 ANPRM, FRA requested comments in response to a proposal 
to create a dual system of measurements, English and metric, for 
inclusion in these regulations. Responses were varied. Some commenters 
suggested that FRA implement metric standards, while others recommended 
that a dual system would be better. Still others argued that the 
addition of metric standards, whether as a single standard or in a dual 
system with English standards, would cause confusion in the industry. 
They added that computerized recordkeeping would have to be re-
programmed at a significant expense.
    The RSAC, after a discussion of the issue by the Track Working 
Group, decided not to recommend the addition of metric standards at 
this time. Therefore, FRA concludes that the introduction of metric 
values into the regulations is not appropriate at this time.
* * * * *

Section By Section Analysis

Section 213.1--Scope of the Part

    The proposed amendment to this section would eliminate the word 
``initial.'' When the Track Safety Standards were first published in 
1971, they were referred to as ``initial safety standards'' because 
they were the first Federal standards addressing track safety. Twenty-
five years and several amendments later, the current Track Safety 
Standards are no longer initial standards. Therefore this amendment 
will eliminate a mischaracterization of the standards by removing the 
outdated descriptive ``initial.''

Section 213.2--Preemptive effect

    This notice proposes to add this section to Part 213 to indicate 
that states cannot adopt or continue in force laws related to the 
subject matter covered in this rule, unless such laws are needed to 
address a local safety hazard and they impose no undue burden on 
interstate commerce. This section is consistent with the mandate of 49 
U.S.C. Sec. 20106, formerly Sec. 205 of the Federal Railroad Safety Act 
of 1970. Although the courts ultimately determine preemption in any 
particular factual context, this section provides a statement of agency 
intent and promotes national uniformity of regulation in accordance 
with the statute.

Section 213.3--Application

    This notice does not propose to amend this section. The RSAC's 
Track Working Group discussed amending subsection (b) to reference 
Appendix A of Part 209 in an effort to clarify FRA's safety policy 
toward trackage used by general system railroads within the confines of 
installations. According to Appendix A of Part 209, an plant owner is 
held liable for the safety of any plant trackage over which a general 
system railroad operates. The Working Group advised that a reference to 
Appendix A of Part 209, which is merely a statement of FRA policy, 
could have the effect of making all provisions of Part 213 enforceable 
against thousands of plant owners, at least to the extent over which 
general system railroads operate within plant borders. Such a result 
would be more far-reaching than intended by the RSAC. Even while FRA 
declines to apply Part 213 to plant railroads, the agency continues to 
have safety jurisdiction over those railroads and may invoke its 
statutory emergency authority if it deems it necessary in order to 
safeguard anyone from the hazard of death or personal injury.

Section 213.4--Excepted Track

    This notice proposes to maintain the provision for excepted track 
with added restrictions for its use and maintenance. Since its 
inception in 1982, the excepted track category has become an economic 
issue for some small railroads, particularly short line railroads and 
low volume shippers. It allows railroads to continue to use, on a 
limited basis, low-density trackage that does not earn sufficient 
revenue to justify the expense of maintaining it to higher track 
standards. It allows short lines to acquire and use trackage that may 
have been abandoned by larger railroads, thereby preserving rail 
service to shippers and avoiding the necessity of shifting traffic over 
those lines from moving to some other, perhaps more hazardous, means of 
transport.
    Because the majority of reportable derailments on excepted track 
are track-caused, and the majority of this total are wide gage related, 
this notice proposes to institute a requirement that gage must not 
exceed of 58\1/4\'' on excepted track. This requirement will only apply 
to the actual gage measurement itself, and will not extend to the 
evaluation of crossties and fasteners which provide the gage restraint. 
A clarification has been added to the inspection requirements on 
excepted track which specifically reference turnout inspections as 
being required under this section.
    The proposal also includes a requirement that railroads notify FRA 
at least 10 days