This is what it says:

§ 230.29 Inspection and repair.
(b) Repair standards.
(2) Any welding to unstayed portions of the boiler made pursuant to § 230.33 shall be made in accordance with an accepted national standard for boiler repairs.

These are the definitions in Part 230:

ANSI. American National Standards Institute.
ASME. American Society of Mechanical Engineers.
NBIC. National Board Inspection Code published by the National Board of Boiler and Pressure Vessel Inspectors.*
Unstayed portion of the boiler. That portion of the boiler designed to be self-supported in retaining internal pressure without additional strength members such as staybolts, braces, diagonal stays, tubes, etc.
*(From the National Board:
The NBIC is an American National Standards Institute (ANSI) accredited standard and provides rules and guidelines for the installation, inspection, repair and alteration of boilers, pressure vessels and pressure relief devices. It is required in many United States and Canadian jurisdictions.)

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During the rule making process the contention was expressed that invoking the National Board Inspection Code by name was not necessary nor was the 3rd party inspection requirement required by the NBIC, if that was the boiler repair standard chosen by the repairer.

Federal Register/Vol. 64, No. 221/Wednesday, November 17, 1999/Rules and Regulations
Federal Railroad Administration
49 CFR Parts 209 and 230
[Docket No. RSSL–98–1, Notice No. 3]
VI. Major Issues
D. Standard for Repairs
…..FRA is imposing a repair standard that allows the locomotive owner and/or operator a
measure of flexibility while simultaneously insuring an adequate minimum level of safety. Accordingly, the agency is requiring that any welded repairs to unstayed portions of the boiler be performed in ‘‘accordance with an accepted national standard for boiler repairs.’’ This modifies the general repair standard discussed above to more narrowly apply to boiler repairs. By referencing an accepted national standard for boiler repairs, the task force and the agency sought to impose a measure of quality control that would
provide assurance that all welding is performed properly. Because there are several national organizations that prescribe such procedures, the operator will be allowed to follow any one of a number of recognized methods. ‘‘In accordance with an accepted national standard for boiler repairs,’’ therefore, means that all the physical, mechanical,
and documentation requirements delineated in a particular standard such as the NBIC have been satisfied. The task force considered recommending that FRA simply adopt the NBIC standard but decided that the financial burden imposed on owners and/or operators would be too great. The NBIC program requires reporting of the final repair and third-party oversight throughout the repair, which can be very costly. Accordingly, the task force decided to simply reference the standard to which the repair should be done, without imposing the reporting or third-party inspection requirements of the standard. FRA agrees with and has adopted the task force’s position.

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When this program was presented to the "Industry" at Strasburg circa 2000, the FRA was there with a full contingent, including attorneys.
I specifically questioned the wording to the attorney on
"shall be made in accordance with an accepted national standard for boiler repairs."
1. Shall means mandatory. He agreed.
2. In accordance with means "in accordance with". He agreed.
3. Accepted national standard means recognized by ANSI. He agreed.
4. And the only boiler repair standard recognized by ANSI was the NBIC. He agreed.
5. "So doesn't IAW an accepted national standard for boiler repairs invoke the NBIC?" He nodded his head implying agreement.
Then I asked this question:
"If the NBIC requires 3rd party inspection and the NBIC is legally invoked, how can the repair be legal without 3rd party inspection?" The attorney said, "We have a 'gentleman's agreement' with the ESC not to enforce that requirement."

So the question for our legal experts is:
"Does lack of enforcement by a federal agency protect and alleviate liability for those performing repairs without full NBIC compliance?"

.

I'm not a technical person, but I'm familiar with the legal effect of FRA standards.

First of all, FRA has no obligation to adopt or enforce in full the standards of NBIC or any other private standard setting organization. It is entitled to pick and choose which private standards to apply or not apply as it sees fit. It is clear from the excerpt you quoted from the steam rulemaking that FRA intentionally did not adopt the NBIC standards in full.

Second, in the event of a conflict between standards adopted by a private standard setting organization like NBIC and an FRA rule, the FRA rule governs.

Third, under FRA's governing statute, an FRA rule on a subject generally "preempts" state laws and regulations on that subject (49 USC 20106), meaning that the state laws and regulations on the subject cannot be enforced. This applies not only to positive regulation by state legislation or rules adopted by a state regulatory agency, but to standards established as a "duty of care" by courts under state tort law. There's plenty of case law on this point. The only exception to this is state laws directed at an "essentially local safety or security hazard", if certain criteria are met. But a statewide standard (either through positive regulation or a "duty of care") would not, by its nature, meet the "essentially local" criteria. In addition, the steam rule was adopted under the Locomotive Boiler Inspection Act (now codified at 49 USC 20701-20703), which totally preempts state laws and regulations on locomotive safety, (at least as to railroads FRA regulates), and has no "local safety or security hazard" exception. The LBIA standard is briefly mentioned in the text of the steam rule (49 CFR 230.5) and more comprehensively discussed in the preamble to the final rule, 64 Fed Reg, at 62835-37, November 17, 1999.

Bob Opal