Comments of the Brotherhood of Maintenance of Way Employes Division (BMWED/IBT)

CEFR Waiver Petition; Joint Bar Testing

BMWED is the recognized collective bargaining representative for railroad maintenance of way employees who inspect, install, construct, repair and maintain railroad track, roadbed and related right-of-way infrastructure on all Class 1 railroads and numerous commuter and shortline railroads in the United States. As such, BMWED, its membership, all of Rail Labor and the public-at-large have a vested interest in railroad safety including issues related to rail joint integrity and the timely initiation of appropriate remedial action to safely protect rail joint defects. BMWED is filing these comments in response to the above-referenced waiver petition published in the Federal Register on July 13, 2015.

Chicago, Ft. Wayne & Eastern Railroad (CFER) seeks a waiver from 49 CFR §213.119(h)-(i) from the required practice of conducting on-foot joint bar inspections to detect cracks and other indications of potential joint failure in Continuous Welded Rail (CWR). The waiver proposes to conduct CWR joint inspections utilizing a Joint Bar Inspection System (JIBIS). CFER proposes the JIBIS system will conduct two tests in fiscal year 2015 with the target dates of July 20, 2015 and November 2, 2015. Accordingly, CFER is seeking a waiver from the FRA to use the JBIS to fulfill the requirements of the on-foot joint bar inspection required by §213.119(h) over approximately 120 miles of CWR track.

CFER states in its waiver petition, “Pursuant to a recently executed contract by and between the Chicago, Ft. Wayne & Eastern Railroad (CFER) and ENSCO, INC (Ensco), Ensco has agreed to conduct simultaneous Light Track Geometry and Joint Bar (Fish Plate) Inspections (JBIS) testing for CFER.” The waiver petition seeks approval from the Federal Railroad Administration (FRA) to use the joint bar inspections from Ensco’s Comprehensive Track Inspection Vehicle (CTIV) “to fulfill the requirements of the on-foot joint bar inspection required by §213.119(h)-(i).”

The decision of CFER to enter into a contract with Ensco to operate a CTIV over its track does not require a waiver from FRA and is insufficient grounds for FRA to grant a waiver from the annual on-foot CWR joint inspection required under §213.119(h)-(i). The docket is completely devoid of any information regarding the operation, calibration, processes, or capabilities of the CTIV. The docket is also devoid of any information regarding how, by whom, and under what timeframe potential joint bar defects will be identified, verified and protected. Additionally, the docket is devoid of any information regarding the CTIV’s ability to consistently identify joint bar fractures pursuant to §213.119(h)(2) and how the CTIV/JIBIS will identify and address “incipient” CWR joint conditions pursuant to §213.119(h)(3)(i-iii).

BMWED believes that continuation of the current requirement for on-foot joint bar inspection under. §213.119(h)-(i) is appropriate, necessary and in the public interest regardless of CFER’s decision to enter into a contract with Ensco to operate this experimental test vehicle on its property. In order to ensure the safety of train operations and to gather data on the efficacy of this experimental test vehicle, the requirements for on-foot joint bar inspection, in full compliance with provisions of 49 CFR part §213.119 Continuous welded rail (CWR), must not be waived.

The CFER request for waiver is also wholly premature. At minimum, CFER needs to follow up each experimental CTIV/JBIS inspection with an immediate on-foot inspection conducted by a person designated and qualified under §213.7. An on-foot inspection in full compliance with §213.119(h) is necessary for verification purposes, otherwise there is no way to determine the efficacy of the testing equipment under “real world” conditions to consistently discover joint bar fractures emanating from either the top or bottom of a joint bar, identify false negatives (i.e., existing cracks/fracture not detected by CTIV/JBIS), and identify joint bar fractures obscured by grease, dirt, bolts, bonding wires, ballast, rail fasteners, etc. Additionally, an on-foot inspection is necessary to identify “incipient” rail joint conditions required by §213.119(h)(3) as follows:

49 C.F.R. §213.119 (h)(3)
Specify the conditions of actual or potential joint failure for which personnel must inspect, including, at a minimum, the following items:
(i) Loose, bent, or missing joint bolts;
(ii) Rail end batter or mismatch that contributes to instability of the joint; and
(iii) Evidence of excessive longitudinal rail movement in or near the joint, including, but not limited to; wide rail gap, defective joint bolts, disturbed ballast, surface deviations, gap between tie plates and rail, or displaced rail anchors;

CFER’s waiver petition is wholly inadequate as it does not provide any detail for FRA or the public to ascertain how the waiver request will achieve an equivalent level of safety. The waiver petition provides insufficient information on which to judge the merits and potential risks of the waiver being sought. Petitioner offers no evidence establishing that the equipment is capable of consistently and accurately identifying joint defects in CWR territory and the docket is devoid of any evidence indicating how the automated CTIV/JIBIS system would fulfill all the requirements of §213.119(h)-(i).

Additionally, each time the CTIV/JIBS system is operated over a joint for testing purposes and suspected or actual defects are identified, the carrier “knows or has notice” that the joint does not or may not comply with the requirements of §213. Therefore, regardless of the means of defect discovery, the track owner must immediately protect the defect as required by §213.5, which reads, in pertinent part:

49 C.F.R §213.5 Responsibility for compliance
(a) Except as provided in paragraph (b) of this section, any owner of track to which this part applies who knows or has notice that the track does not comply with the requirements of this part, shall—
(1) Bring the track into compliance;
(2) Halt operations over the track; or
(3) Operate under the authority of a person designated under §213.7(a), who has at least one year of supervisory experience in railroad track maintenance, subject to conditions set forth in this part.

A waiver from the requirements of §213.119(h)-(i) does not relieve the carrier from its responsibility for compliance pursuant to §213.5. All joint bar defects subject to remedial actions under §213.9(b) or §213.121 are required to be immediately protected upon discovery. The propagation of a crack in a joint bar or bars can happen with the next wheel traversing over the joint. Failure or delay in the application of appropriate remedial action for joint bar conditions puts the carrier, railroad workers, and the safety of the general public at risk. Failure to conduct thorough and comprehensive joint bar inspections in full compliance with §213.119(h)-(i) and failure to institute required remedial action in real time presents an unnecessary opportunity for catastrophic joint failure with the potential for derailment, injury, loss of life, environmental damage and property loss.

BMWED is not opposed to the use of technology to supplement required visual track and joint bar inspections. The synergies of visual inspections supplemented by automated technologies have been championed by BMWED for decades as a means for improving overall track integrity and railroad safety. However, in this instant case, CFER seeks a waiver to eliminate the required once annual on-foot CWR joint inspection conducted by a qualified §213.7 track inspector and replace same with an experimental automated inspection. CFER has not provided the public with any information about the efficacy of this experimental inspection technology; requirements for its operation, calibration, or capabilities; processes concerning how, by whom and under what timeframe CWR joint defects will be identified, verified and protected; nor how the experimental technology will fulfill the requirements of identifying and addressing incipient CWR joint conditions pursuant to §213.119(h)(3)(i-iii).

In closing, CFER does not require a waiver from FRA to operate a CTIV/JIBIS to supplement the required once annual on-foot inspection. Additionally, CFER has failed to demonstrate how elimination of the annual on-foot inspection in favor of an experimental technology provides an equivalent level of safety. Therefore, for the reasons stated above and in the interest of railroad and public safety, BMWED urges FRA to reject the CFER request for waiver in its entirety.

BMWED appreciates the opportunity to provide these comments in response to the CFER waiver petition in docket FRA-2015-0059, and we look forward to working with FRA and the industry to improve track integrity and rail safety.