Guidance: In reference to (e)(1) through (4), a well-documented pattern of repeated or widespread deviations from these requirements by a track owner, including train operations in excess of 10 mph, will effectively terminate the privilege afforded by this section. The affected track would then become subject to all requirements of the TSS.

The word ‘‘occupied’’ in (e)(2) refers to paying and non-paying passengers. It does not include train crew members, track maintenance crews, and other railroad employees who must travel over the track to attend to their work duties.

The gage requirement only applies to the actual measurement itself under load, and does not extend to the evaluation of crossties and fasteners that provide the gage restraint. In the case of noncompliance with the gage requirement in excepted track, the railroad may invoke § 213.9(b) as remedial action. [See § 213.9(b) for restrictions.]

Guidance: The railroad or track owner is required to notify the appropriate FRA Regional Office 10 days before removing trackage from excepted status. A railroad may not move the track from excepted to non-excepted status to operate an occupied passenger train or a train containing more than five cars placarded in accordance with 49 CFR Part 172, unless proper notification procedures are followed.

Inspectors will continue to inspect excepted track and report these inspections on the F6180.96 form. If serious deficiencies are discovered, they will be shown on the inspection form, noting that the track is in excepted status. The railroad or track owner would not be legally obligated by the TSS to correct the deficiencies noted, except for gage deviations in excess of 4 feet 10¼ inches (213 defect code 0053B5). However, if the condition of the track continues to constitute a hazard to life and limb and the track owner fails to alleviate the hazard, the inspector should notify the regional track specialist immediately. Issuance of an emergency order would be appropriate to address any serious defects that would pose an immediate safety threat to railroad employees or the public.

This notification provision is intended to prevent the practice FRA has witnessed in the past by some railroads. Specifically, those who remove trackage from excepted status only long enough to move a passenger excursion train or a train with more than five cars containing hazardous materials.

The following examples are provided to inspectors to determine compliance with the provision of excepted track.

Example One. On January 15, 2014, a railroad designates a 2-mile segment of its yard track Number 1, which is Class 1 track, as excepted track. The excepted track segment is located within 25 feet of an adjacent track over which simultaneous operations at speeds up to 20 mph are authorized. On January 25, 2014, an inspector discovers five locations in that segment at which Class 1 gage requirements are not being met.

Result: The segment of yard track Number 1 involved is ineligible for designation as excepted track because it violates § 213.4(b) simultaneous use restriction. Therefore, the segment remains subject to provisions of the TSS for Class 1 track. FRA may cite for correction or violation any deviation from the TSS discovered in the segment, such as the five gage defects. The railroad may also be cited, at the FRA inspector’s discretion, for a violation of § 213.4(b) and will include the substantive defects (e.g., gage, alinement, crossties). As remedial action the railroad may authorize trains operations not to exceed 10mph speed restriction to include all tracks within 30-feet and adjacent to an excepted track, in effect removing the simultaneous use provision.

Example Two. A railroad designates yard track number 6, which is classified as Class 1 track, as excepted track on November 30, 2013. The railroad does not conduct any inspections over the track during December.

Result: Yard track number 6 loses its eligibility for designation as excepted track on January 1, 2014, and remains ineligible thereafter until the inspections required by

§ 213.4(c) begins. Starting January 1, 2014, the track becomes subject to all provisions of the TSS and remains subject to those requirements until such time as the inspections begin. Violation citations arising from inadvertent violations of the inspection requirement ordinarily should be issued only where safety was impaired or there is evidence of continued noncompliance.

In contrast to violations of the definitional (§ 213.4(a) to (d)) requirements, the unit of violation for noncompliance with the operational limitations is the train. We refer here to occasional and inadvertent noncompliance with operational limitations. A persistent and well-documented pattern of noncompliance with respect to a particular segment may cause the railroad to lose its privilege of designating the segment as excepted track (i.e., the track would no longer qualify for such designation), or force FRA to use more drastic enforcement remedies such as emergency orders. The following examples illustrate this concept.

Example Three. A railroad properly designates a track segment as excepted track, 10 days later it operates a freight train containing 10 placarded tank cars over the track segment.

Result: One violation of § 213.4(e)(3) by the railroad has occurred, not five, because the unit of violation is the train rather than each of the placarded cars exceeding the five car limit. The segment continues to be excepted track because a violation of an operational limitation does not render the track ineligible for excepted track status.

Example Four. Railroad A properly designates one of its track segments as excepted track. Railroad B’s freight train 2425, using the segment pursuant to a trackage rights agreement with Railroad A, operates over the segment at a speed of 20 mph.

Result: One violation has occurred of § 213.4(e)(2) by Railroad A. The track owner is the responsible party for illegal operations over the excepted track. The segment continues to be excepted track.

§ 213.5 Responsibility for compliance

This paragraph also provides that the party responsible for compliance can be other than the actual owner of the track through assignment of responsibility or if the Surface Transportation Board (formerly Interstate Commerce Commission) has issued a directed service order. FRA may hold responsible any party contracted by the track owner to ensure compliance with this part. FRA may hold the track owner, the assignee, or both responsible.

Guidance: Inspectors may request verification of the experience and qualifications of the supervisory and track inspection personnel from a track owner. The submission of a seniority roster or job awarding bulletin is not to be considered as satisfactory identification of qualified employees or as a basis for their designation. The owner should make specific names of individuals and their qualifications available in writing. If the inspector is in doubt as to the qualifications of the owner’s supervisory or inspection personnel, the inspector should examine the owner’s inspection records. The TSS require the retention of track inspection reports for 1 year. Should the records consistently fail to reflect the actual track conditions, questions can be raised as to the competence and/or qualifications of the persons included in the list.

Paragraphs (a)(2)(i) and (b)(2)(i) clarify that the requirements for a person to be qualified under this section concern the portions of Part 213 necessary for the person to perform his/her duties. The person is not required to know or understand specific requirements of this part not necessary to fulfill his or her duties. For example, track foremen and inspectors may not be required to know or understand vehicle qualification and testing requirements for high cant deficiency operations in track Classes 1 to 5 in fulfilling their duties.

When in doubt as to the qualifications of an owner’s supervisors or inspectors, the inspector should discuss the matter with the railroad.

Guidance: The TSS classifies track solely on the basis of authorized speeds for freight and passenger trains. Tolerances are specified in the TSS for each class of track. A deviation beyond the limiting tolerances for Classes 1 through 5 requires repair, or reduction of speeds to the appropriate class. The only structural or geometry defect that is applicable on excepted track is gage exceeding 4 feet 10¼ inches.

The initial speed of any track is based on the design characteristics of the track. FRA does not set the speed, and railroads are required to keep track in compliance with the requirements of Part 213. In addition to track design characteristics, speeds may be set by other factors such as the type of signal apparatus. Maximum speeds are also limited if a signal system is not in place on a track (refer to 49 CFR § 236 for further information).

If a deviation exceeds Class 1 standards, operations may continue for not more than 30 days over the deviation, not exceeding Class 1 speeds. This is only permitted after a person designated and qualified in the provisions of § 213.7(a), determines that operations may safely continue and specifies limiting conditions, if any. The designated person must have personally seen and evaluated the deviation. This section may also govern a deviation exceeding allowable gage on excepted track.

As described in paragraph (a), the maximum allowable operating speed for each class of track is shown in the table. However, the maximum allowable operating speed on a curve is also limited by the geometry parameters contained in § 213.57(b) [Unbalance] and § 213.59(a) [Superelevation]. For example, a speed for a passenger train based on the elevation at a curve may be only 18 mph, even though the track may otherwise comply with a higher track class.

One or two loose braces are usually not considered to be an immediate hazard, provided that the other braces are in acceptable functional condition to support the stock rail. On the other hand, several consecutively loose braces, especially in the higher track classes, could be much more serious.

Intermittent patches of vegetation that brush the sides of rolling stock may not be an immediate hazard, but more severe vegetation might have the potential of contributing to the injury of an employee who is riding on the side of a car or looking out locomotive cab windows. The specific description for this type of defect is "vegetation brushing sides of  rolling stock that prevents employees from visually inspecting moving equipment from their normal duty stations" (213 defect code 0037E3).

Guidance: A track segment must meet all the requirements for its designated class. Where a track segment does not meet all the requirements, railroads can reclassify the segment for the next lowest class for which it complies. For example, on a Class 3 Track, where the alinement mid-chord offset from a 62-foot chord on a tangent track measured 2-inches, the railroad can elect to reduce the speed equivalent to Class 2 track.

Trains may continue to operate over a noncomplying condition under § 213.9(b). However, the 30-day limit for any given condition cannot be exceeded. The 30-day period commences when:

• An FRA inspector notifies the carrier or issues notice with a F6180.96 form.

• A person designated under § 213.7 records the defect on a track owner’s record of inspection.

• Notices of substandard conditions are received from third parties.

• The track owner is deemed to have constructive knowledge if the defects were discoverable through properly performed track inspections required by the TSS, even if the defects are not reported on the owner’s record of inspection.

Several other points concerning § 213.9(b) should be noted:

• FRA inspectors should not attempt to predict an exact date on which a sub-Class 1 defect first existed. In most cases, a reasoned approximation (with accompanying explanation of the basis for the inspector’s conclusions) will be sufficient to show that § 213.9(b) is not available to the track owner. Because of the serious enforcement problems presented by application of the constructive knowledge test, inspectors should use this authority judiciously.

• Once a determination has been made that operations may safely continue over a segment, the 30-day period applies to all sub-Class 1 defects present in the segment at that time. The 30-day period is an appropriate remedial action for sub-Class 1 defects and the 30-day period can only be applied one time. At the expiration of the 30-day period, the defects must be repaired, track placed into excepted track status, or the track must be removed from service.

• The limiting conditions, if any, placed on operations must be in a form generally used by the track owner to communicate operating restrictions to its personnel and to any other railroads authorized to use the track involved. If a train operating over the track fails to comply with any such condition, one violation of § 213.9(b) by the track owner has occurred, regardless of the identity of the operator of the train.

• Section 213.9(b) does not apply where defective rails are involved. Section 213.113 exclusively governs further operations over defective rails.

The following table shows examples of those sections in the TSS that are "class specific," "speed defined" and "non-class-specific." This table is not all-inclusive and is only a reference instrument. Inspectors should refer to the specific guidance under each section for further details and instructions on each item listed in the table. 

Guidance: Typically, waivers bear the signature of AA/Chief Safety Officer, or his/her delegate. Inspectors should keep updated with any waivers in effect in their assigned territory which are relevant to their job activities.