[September 09, 2011] Track Safety Standards; Concrete Crossties Tweet Sep 09, 2011 (Transportation Department Documents and Publications/ContentWorks via COMTEX) -- SUMMARY: 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. EFFECTIVE DATE: 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: 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 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-by-Section analysis also contains a detailed discussion of each provision of the final rule which FRA has amended or clarified. The amendments contained in this document generally clarify requirements currently contained in the final rule or allow for greater flexibility in complying with the rule, and are within the scope of the issues and options discussed, considered, or raised in the NPRM. 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 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 SEC 213.109(d)(1) as specified in SEC 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 SEC 213.109(d)(1) improves upon SEC 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 SEC 213.335(d) would be outside the scope of this proceeding, as modifications to the language in SEC 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 SEC 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 SEC 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 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 pre-stress 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 SEC 213.109(d)(1). AAR Petition: The Use of Crossties With One Fastener on a Rail AAR argues that SEC 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 SEC 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: 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). --This is a summary of a Federal Register article originally published on the page number listed below-- Final rule; response to petitions for reconsideration. CFR Part: "49 CFR Part 213" RIN Number: "RIN 2130-AC35" Citation: "76 FR 55819" Document Number: "Docket No. FRA-2009-0007, Notice No. 4" Federal Register Page Number: "55819" "Rules and Regulations" [ Back To TMCnet.com's Homepage ]