[Federal Register Volume 89, Number 206 (Thursday, October 24, 2024)]
[Proposed Rules]
[Pages 84845-84861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-24153]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

[Docket No. FRA-2024-0032]
RIN 2130-AC96


Track Geometry Measurement System (TGMS) Inspections

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing to revise its regulations governing the 
minimum safety requirements for railroad track. The proposed changes 
would require all Class I and II railroads, as well as intercity 
passenger railroads and commuter railroads, to operate a qualifying 
Track Geometry Measurement System (TGMS), a type of automated track 
inspection (ATI) technology, at specified frequencies on all Class 1 
through 5 mainline and controlled siding track that transports: annual 
tonnage greater than 10 million gross tons (MGT); regularly scheduled 
passenger rail service; or trains containing hazardous materials. FRA 
also proposes increasing the required frequency of TGMS inspections on 
Class 6 track.

DATES: Written comments must be received by December 23, 2024. Comments 
received after that date will be considered to the extent possible 
without incurring additional expense or delay.

ADDRESSES: 
    Comments: Comments related to Docket No. FRA-2024-0032 may be 
submitted by going to https://www.regulations.gov and following the 
online instructions for submitting comments.
    Instructions: All submissions must include the agency name, docket 
number (FRA-2024-0032), and Regulatory Identification Number (RIN) for 
this rulemaking (2130-AC96). All comments received will be posted 
without change to http://www.regulations.gov; this includes any 
personal information. Please see the Privacy Act heading in the 
SUPPLEMENTARY INFORMATION section of this document for Privacy Act 
information related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov and follow the 
online instructions for accessing the docket.

FOR FURTHER INFORMATION CONTACT: Yu-Jiang Zhang, Staff Director, Track 
and Structures Division, Office of Railroad Safety, Federal Railroad 
Administration, 1200 New Jersey Avenue SE, W33-302, Washington, DC 
20590, telephone: 202-493-6460; or Aaron Moore, Senior Attorney, Office 
of the Chief Counsel, Federal Railroad Administration, 1200 New Jersey 
Avenue SE, W31-216, Washington, DC 20590, telephone: 202-853-4784.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Legal Authority
III. Background
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
    A. Executive Order 12866 as Amended by Executive Order 14094
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. International Trade Impact Assessment
    F. Environmental Impact
    G. Executive Order 12898 (Environmental Justice)
    H. Unfunded Mandates Reform Act of 1995
    I. Energy Impact
    J. Privacy Act Statement
    K. Executive Order 13175 (Tribal Consultation)
    L. Rulemaking Summary, 5 U.S.C. 553(b)(4)

I. Executive Summary

Purpose of the Regulatory Action

    ATI technologies have been evolving since the 1970s and FRA has 
been researching ATI technology, including TGMS, for many years. This 
effort has included multiple FRA-authored or sponsored technical 
reports,\1\ as well as

[[Page 84846]]

FRA-approved Test Programs (49 CFR 211.51) with nearly every Class I 
railroad,\2\ to evaluate the effectiveness of this technology. Based on 
its years of research into TGMS, as well as its own Automated Track 
Inspection Program (ATIP) and the Class I Test Programs, FRA 
acknowledges the safety benefits of this technology, specifically its 
ability to quickly and accurately detect small changes in track 
geometry. FRA notes that TGMS is not a substitute for visual track 
inspections, which inspect for numerous conditions aside from track 
geometry and remain essential to ensuring railroad safety.
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    \1\ See e.g., Autonomous Track Geometry Measurement Technology 
Design, Development, and Testing (2018), available at https://downloads.regulations.gov/FRA-2020-0013-0003/attachment_5.pdf; 
Evaluation of the Federal Railroad Administration's Autonomous Track 
Geometry Measurement System Research and Development Program (2016), 
available at https://railroads.dot.gov/sites/fra.dot.gov/files/fra_net/17086/ATGMS%20final%20report_final.pdf; FRA Autonomous Track 
Geometry Measurement System Technology Development--Past, Present, 
and Future (2014), available at https://downloads.regulations.gov/FRA-2020-0013-0003/attachment_1.pdf; Development and Use of FRA 
Autonomous Track Geometry Measurement System Technology (2014), 
available at https://downloads.regulations.gov/FRA-2020-0013-0003/attachment_3.pdf; Development of Autonomous Track Geometry 
Measurement Systems for Overall Track Assessment (2011), available 
at https://downloads.regulations.gov/FRA-2020-0013-0003/attachment_4.pdf; Autonomous Track Inspection Systems--Today and 
Tomorrow (2009), available at https://downloads.regulations.gov/FRA-2020-0013-0003/attachment_2.pdf.
    \2\ See Docket Numbers FRA-2018-0091 (BNSF); FRA-2019-0099 (NS); 
FRA-2020-0013 (CSX); FRA-2020-0014 (CN); FRA-2020-0031 (UP); FRA-
2020-0056 (CP) (available on www.regulations.gov).
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    Today, every Class I and II railroad uses some form of TGMS to 
measure track geometry. FRA regulation already requires TGMS 
inspections for high-speed track (Class 6 and above) as well as lower-
speed track with cant deficiency of higher than 5 inches.\3\ While 
these existing requirements are applicable to a relatively small subset 
of railroads in the United States, FRA's research indicates that all 
railroads covered by this proposed rulemaking are already performing 
TGMS inspections on their networks at or above the frequencies FRA is 
proposing in this rule. Therefore, the purpose of this rulemaking is to 
codify this industry practice while also setting baseline requirements 
for areas such as TGMS calibration, recordkeeping, defect remediation 
timeframes, and training.
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    \3\ See 49 CFR 213.57(i), 213.333. These TGMS inspections are in 
addition to the visual inspections required by other sections of 
part 213.
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Summary of Major Provisions

    FRA is proposing regulations to amend 49 CFR part 213, Track Safety 
Standards (TSS), which prescribe the minimum safety requirements for 
railroad track. The proposed changes would require all Class I and II 
railroads, as well as intercity passenger railroads and commuter 
railroads, to operate a qualifying TGMS, at specified frequencies on 
all Class 1 through 5 mainline and controlled siding track that 
transports: (1) annual tonnage greater than 10 MGT; (2) regularly 
scheduled passenger rail service; or (3) trains containing hazardous 
materials, as defined in 49 CFR 171.8. FRA also proposes increasing the 
required frequency of TGMS inspections on Class 6 track.
    Currently, the TSS require TGMS inspections for high-speed track 
(Class 6 through 9), and lower speed track (Class 1 through 5) where 
the cant deficiency is more than 5 inches. As noted above, FRA's 
research indicates that all the railroads that would be subject to this 
proposed rule are already performing all visual inspections required by 
the TSS in addition to voluntarily performing TGMS inspections at or 
above the frequency that would be required by this NPRM. Thus, this 
NPRM would codify this industry practice as well as set forth 
requirements that include remedial action of detected track geometry 
defects within a specified timeframe, training, and recordkeeping.
    The NPRM proposes adding 49 CFR 213.236 to 49 CFR part 213, subpart 
F, and making conforming changes to Sec.  213.333 to require TGMS 
inspections at least three times within a 365-day period on Class 1 
through 5 mainline and controlled siding tracks that meets one of three 
stated requirements, and all of Class 6 track. There would be no change 
to the current frequency requirement for Class 7 and above track. The 
TGMS must be capable of transmitting data in a manner that permits the 
track owner to take proper remedial action within one hour of detection 
of a defect. This one-hour timeframe would represent the maximum 
permitted time between when a TGMS detects a geometry defect and when a 
track owner must take remedial action.
    The NPRM also proposes certain recordkeeping and training 
requirements for TGMS inspections, as well as minimum requirements for 
what must be included in TGMS reports.
    The NPRM also proposes certain changes to Sec.  213.241 and 
identical changes to Sec.  213.339. FRA proposes updating the list of 
types of inspections that are required to produce reports that conform 
with the requirements of Sec. Sec.  213.241(b) and 213.339(b), most 
significantly adding special inspections (Sec. Sec.  213.239 and 
213.367) to this list. These special visual inspections are required 
after a specific occurrence, such as a fire or flood or storm, that may 
have damaged the track structure. Under current FRA enforcement 
practices, these inspections have historically not been required to be 
documented. Documenting the data, as proposed will help railroads to 
reduce risk of track damage from these events by ensuring the 
inspections are performed, if possible, prior to train traffic. Also, 
these inspections improve FRA oversight since without them, it can be 
difficult to confirm that a required inspection was performed. Further, 
FRA proposes revising the requirement for electronic recordkeeping to 
add additional safeguards such as requiring training on the proper use 
of the system, access controls, and an information technology security 
program to ensure adequate integrity of the system.

Benefits and Costs

    FRA analyzed the economic impact of this proposed rule over a 10-
year period and estimated its benefits and costs. FRA expects the 
proposed rule to enhance safety and promote innovation. According to 
FRA's Railroad Equipment Accident Incident Database,\4\ Class I and 
Class II railroads reported over $191.6 million in total damages from 
track geometry caused accidents over the past 10 years from 2014 to 
2023. FRA expects the reduction in track-related accidents due to the 
proposed rule's one-hour remediation requirement to partially offset 
the cost of the proposed rule. Section V.A of this document describes 
more fully the benefits and costs that would result from issuing this 
rule.
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    \4\ See Railroad Equipment Accident Database (Form 54) at 
https://data.transportation.gov/Railroads/Railroad-Equipment-Accident-Incident-Source-Data-F/aqxq-n5hy/about_data.
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    The proposed rule would require track owners to take proper 
remedial action no later than one hour following the identification of 
any track geometry exception to the class of track identified by the 
TGMS system. FRA expects the affected track owners would be required to 
hire a total of 94 new maintenance-of-way (MOW) employees to accomplish 
this proposed requirement.
    The proposed rule would also require additional recordkeeping of 
all track geometry exceptions detected by the TGMS vehicle. The report 
and any revisions must be documented, signed, certified by a Sec.  
213.7(b) qualified employee, and made available to FRA upon request. 
The track owner would be responsible for training MOW employees, 
recordkeeping requirements, and record storage and maintenance. FRA 
estimates all affected track owners would be required to provide one 
hour of training to each of their approximately 10,000 MOW employees 
during the first year after the proposed rule goes into effect. FRA 
estimates additional training would be required starting in the second 
year after the proposed rule goes into effect as newly hired 
maintenance workers replace the anticipated 2 percent of maintenance 
workers expected to depart due to attrition. Overall, FRA estimates the 
proposed rule would cost the affected track owners $123.4 million 
discounted at a 2 percent rate over the 10-year period, as shown in 
Table ES-1.

[[Page 84847]]



                         Table ES-1--Summary of Total NPRM Costs Over the 10-Year Period
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                                                                   Present value   Present value   Present value
                     Impact                        Undiscounted       7% ($)          3% ($)          2% ($)
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Employment......................................    $122,808,067      95,839,164     116,397,525     122,570,434
Training........................................         837,480         750,278         796,637         809,594
                                                                 -----------------------------------------------
    Total cost..................................     123,645,547      96,589,442     117,194,162     123,380,028
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                                      Impact....................      Annualized      Annualized      Annualized
                                                                              7%              3%              2%
                                                                             ($)             ($)             ($)
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                                      Employment................      13,645,341      13,645,341      13,645,341
                                      Training..................         106,822          93,390          90,129
                                                                 -----------------------------------------------
                                         Total cost.............      13,752,163      13,738,731      13,735,470
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II. Legal Authority

    Section 20103 of title 49 of the United States Code (U.S.C.) 
explicitly grants FRA comprehensive authority over all areas of 
railroad safety and provides that, ``[t]he Secretary of Transportation, 
as necessary, shall prescribe regulations and issue orders for every 
area of railroad safety.'' This statutory section codifies the 
authority granted to the Secretary of Transportation under the Federal 
Railroad Safety Act of 1970. The Secretary delegated this authority to 
act under sec. 20103 to the Federal Railroad Administrator.\5\
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    \5\ 49 CFR 1.89.
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    Pursuant to this authority, FRA published the first TSS on October 
20, 1971. It was meant to be an evolving set of safety requirements 
subject to continuous revision, thus allowing the regulations to keep 
pace with industry innovations and agency research and development. The 
TSS covers numerous areas such as drainage, vegetation, track geometry, 
and track structure. Additionally, the TSS includes specific 
requirements for different types of inspections, at specific 
frequencies, meant to ensure the defective conditions covered under 
other sections of the TSS are found and remediated prior to them posing 
a safety risk. These inspection requirements are vitally important to 
ensuring that the safety requirements in the TSS accomplish their 
purpose of ensuring railroad safety by requiring railroad to actually 
look for the defective conditions covered by the TSS and, if found, 
repair them.
    As explained in more detail below, many years of research, 
development, and real-world use has proven the effectiveness of TGMS 
inspections at detecting geometry conditions. These inspections, when 
used as a supplement to the currently required visual inspections, have 
been proven to increase railroad safety by detecting more geometry 
conditions and, in many instances, due to the sensitivity of the 
systems, detecting these conditions earlier in their degradation 
process. Thus, TGMS inspections fall squarely within FRA's authority to 
regulate areas of railroad safety.

III. Background

    ATI technologies have been evolving since the 1970s and, with 
advances in rail safety, the number of track-caused derailments in the 
United States has steadily decreased since that time. In recent years, 
however, the rate of the decrease has slowed. New and alternative track 
inspection methodologies and associated technologies are being 
developed to help continue to drive down the number of track-caused 
derailments. Technological advancements, including ATI and other 
emerging technologies, have become a key element of track asset 
management and safety assurance practices. TGMS, ground penetrating 
radar, track imaging systems, ultrasonic rail flaw detection systems, 
machine learning-based track component (visual) inspection systems, 
vertical track deflection systems, and Lidar 3-D scanning systems are 
all now used to measure various aspects of track health.
    Today, every Class I railroad uses some form of TGMS to measure 
track geometry. Track geometry \6\ is a critically important parameter 
for assessing the condition of railroad track and maintaining safety. 
Class II railroads, and even some smaller railroads, also utilize this 
technology. FRA, itself, runs a fleet of track inspection cars under 
its ATIP, conducting compliance surveys on over 150,000 miles of track 
annually.
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    \6\ Track geometry generally refers to the parameters listed in 
49 CFR part 213, subpart C, as well as 49 CFR 213.323 through 
213.332. This includes gage (the distance between the two rails), 
alinement (how straight the rails are), crosslevel (the difference 
in the height of the two rails), and profile (how level the two 
rails are).
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    TGMS provides an objective method to evaluate track conditions and 
to identify defective conditions in the track or conditions that could 
lead to defects in the track. In addition to these safety benefits, 
TGMS technologies have operational benefits. As a supplement to visual 
inspections by track inspectors, automated inspections can take key 
measurements continuously and at track speed, allowing the inspection 
of more track in any given time period, as compared to track inspectors 
solely performing manual, visual inspections. Onboard computers process 
an enormous amount of raw data in real time and produce concise track 
condition reports, noting indications of track defects or deviations so 
that track owners can take remedial actions promptly.
    TGMS systems may also be autonomous, otherwise known as Autonomous 
Track Geometry Measurement Systems (ATGMS), meaning the highly 
specialized, automated inspection equipment is mounted to on-track 
equipment (in some cases revenue trains) and the inspections are 
conducted with minimal direct human involvement (e.g., uncrewed 
operations). Autonomous technologies have been developed utilizing 
revenue service trains equipped with data collection equipment that 
employ wireless communications to provide inspection data with 
increased frequency and reduced cost. By making inspection systems 
autonomous, the data can be collected more frequently without consuming 
track time. Autonomous inspection technologies provide earlier 
detection of track defects and changing maintenance practices from 
reactive to preventative, ultimately reducing the number of track-
caused derailments throughout the railroad industry.

[[Page 84848]]

    FRA has conducted extensive research on ATGMS and drafted technical 
documents and summaries on the subject. In 2008, FRA installed an ATGMS 
on Amtrak's Auto Train route operating between Virginia and Florida. 
The system detects, locates, and reports potential track geometry 
defects in near real-time to a web-based inspection data management 
system for review and remedial action. Since that test, industry 
adoption of ATGMS has grown each year.\7\
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    \7\ Railroad use of TGMS and ATGMS is generally not required for 
Class 1 through 5 track, and supplements FRA-required visual 
inspections and other automated inspections required under 49 CFR 
part 213.
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    Starting in 2018, FRA approved Test Programs under 49 CFR 211.51 
for nearly every Class I railroad \8\ to evaluate the effectiveness of 
ATGMS in combination with different frequencies of visual inspections. 
Additionally, in 2019, FRA tasked the Railroad Safety Advisory 
Committee (RSAC) to enhance rail safety by improving track inspection 
methods, frequency, and documentation. The RSAC provides a forum for 
developing consensus recommendations and providing information to the 
Administrator of FRA on rulemakings and other safety program issues, 
and includes representatives from all the agency's major stakeholders. 
The RSAC assigned the task \9\ to the Track Safety Standards Working 
Group (Working Group), which met approximately 11 times over a span of 
five years. For this task, the Working Group's main goal was to 
recommend how to incorporate ATI technology into FRA's existing track 
inspection requirements by leveraging the results of each Test Program.
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    \8\ See FRA-2018-0091 (BNSF); FRA-2019-0099 (NS); FRA-2020-0013 
(CSX); FRA-2020-0014 (CN); FRA-2020-0031 (UP); FRA-2020-0056 (CP).
    \9\ Track Inspection Task 2019-05.
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    In 2021, BNSF concluded its Test Program, and FRA approved a waiver 
allowing BNSF to continue utilizing the methodologies from the Test 
Program on a designated area of track, with additional metrics in place 
to ensure safety.\10\ The Working Group continued to meet regularly to 
discuss the task, and by November 2022, every Test Program had 
concluded.
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    \10\ See https://www.regulations.gov/docket/FRA-2020-0064.
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    In October 2023, the Working Group determined it would not be able 
to reach a consensus or provide FRA with a recommendation. However, the 
Working Group agreed that railroad use of ATI technology, such as TGMS 
and ATGMS, benefits track safety. In March 2024, the task was 
officially closed without a recommendation.
    This NPRM is based, in part, on FRA's research, ATIP operational 
experience, the results of the Test Programs and BNSF's waiver, and 
Working Group member involvement through the RSAC process. As proposed 
in this NPRM and discussed in more detail below, this rulemaking would 
revise the TSS to require all Class I and II railroads, as well as 
intercity passenger railroads and commuter railroads, to operate a 
qualifying TGMS at specified frequencies on all Class 1 through 5 
mainline and controlled siding track that transports: (1) annual 
tonnage greater than 10 MGT; (2) regularly scheduled passenger rail 
service; or (3) trains containing hazardous materials as defined in 49 
CFR 171.8. FRA also proposes increasing the required frequency of TGMS 
inspections on Class 6 track. FRA's research indicates that all the 
track owners affected by this rulemaking are already performing TGMS 
inspections at or above the frequency that would be required by this 
NPRM. Thus, this NPRM would codify this industry practice as well as 
set forth requirements that include remedial action of detected defects 
within a specified timeframe, training, and recordkeeping.

IV. Section-by-Section Analysis

    FRA seeks comments on all proposals made in this NPRM.

Section 213.236 Automated Vehicle-Based Inspection System

    FRA proposes to add this new section to require all Class I and II 
railroads, as well as intercity passenger and commuter railroads, to 
operate a qualifying TGMS on all class 1 through 5 mainline and 
controlled siding track on which: (1) annual tonnage exceeds 10 MGT; 
(2) there is regularly scheduled passenger service; or (3) there is the 
transportation of hazardous material as defined in 49 CFR 171.8. The 
terms ``exception'' and ``defect'' are used interchangeably throughout 
this NPRM.
    While there are meaningful differences, FRA generally based this 
new section on existing Sec.  213.333, which requires TGMS inspections 
on Class 6 through 9 track, as well as Class 1 through 5 track where 
there are operations at a cant deficiency of greater than 5 inches. 
Similarities and differences from Sec.  213.333 are discussed further 
below.
    Proposed paragraph (a) would require all Class I and II railroads, 
as well as intercity passenger railroads and commuter railroads, to 
operate a qualifying TGMS on all Class 1 through 5 mainline and 
controlled siding track, where any of the following occur: annual 
tonnage of greater than 10 MGT; regularly scheduled passenger service; 
or transportation of hazardous materials as defined in 49 CFR 171.8. 
The qualifying TGMS inspection must be conducted at least three times 
within any 365-day period, with not less than 90 days between 
inspections. FRA invites comment on ``transportation of hazardous 
materials,'' specifically the timeframe and frequency that should be 
required before this element is met.
    Proposed paragraph (b) mirrors, with one minor grammatical change 
that does not alter its requirements, the current requirements of Sec.  
213.333(b). It would require that a qualifying TGMS meet or exceed 
specific design requirements. First, proposed paragraph (b)(1) would 
require geometry measurements to be taken no more than 3 feet away from 
the contact of wheels carrying the vertical load of no less than 10 
kips per wheel, unless otherwise approved by FRA. Second, proposed 
paragraph (b)(2) would require geometry measurements to be taken and 
recorded on a distance-based sampling interval not exceeding 2 feet and 
preferably at 1 foot. Finally, proposed paragraph (b)(3) would require 
calibration procedures and parameters that ensure that values measured 
and recorded by the TGMS accurately represent the actual track 
conditions. Procedures and parameters that do not result in measured 
and recorded values that accurately represent the track conditions, or 
a TGMS system that does not accurately measure or record the values, 
would not comply with this proposed provision. Proposed paragraph 
(b)(3) would further require that measurements recorded by the system 
not differ more than \1/8\ inch on repeated runs at the same site and 
same speed.
    Proposed paragraph (c) would, like existing Sec.  213.333(c), 
require that the qualifying TGMS be capable of measuring and processing 
the geometry measurements to determine compliance with the applicable 
regulatory geometry limits. For purposes of proposed paragraph (c), 
those sections would be Sec.  213.53, track gage; Sec.  213.55, track 
alinement; Sec.  213.57, curves, elevation, and speed limitations; and 
Sec.  213.63, track surface. Additionally, for operations at a 
qualified cant deficiency of more than 5 inches, the TGMS must be 
capable of measuring and processing the geometry measurements to 
determine compliance with Sec.  213.65, combined track alinement and 
surface deviations.
    Proposed paragraph (d) would impose certain requirements on the 
data from a TGMS. Proposed paragraph (d)(1) would require that a TGMS 
transmit the data in a manner that enables the track

[[Page 84849]]

owner to take proper remedial action within one hour of identification 
of any exception to the class of track the TGMS inspects. This one-hour 
time period would commence at the time the TGMS passes over the section 
of track containing the geometry defect. This means that track owners 
will need to have the resources and the procedures to ensure that 
within one hour of the TGMS passing over that section of track, the 
measurements from the TGMS are processed and proper remedial action is 
put in place.
    FRA invites comment on this one-hour remediation requirement, 
including potential issues involving areas of track where limitations, 
such as lack of cell coverage, may impair data transmission and 
possible solutions for these problems and estimated costs. If a 
commenter believes that a one-hour remediation requirement is not 
feasible, FRA requests that alternative timeframes be proposed and that 
the comment include a discussion about the potential risks of leaving a 
geometry defect in the track for a longer period of time and possible 
ways to mitigate such a risk.
    Proposed paragraph (d)(2) would require, just as currently required 
by Sec.  213.333(d)(1), that the TGMS provide a continuous plot, on a 
constant-distance axis, of all measured track geometry parameters 
required in proposed paragraph (c). Proposed paragraph (d)(3) would 
require the TGMS to provide a report containing a comprehensive listing 
of all exceptions to track geometry requirements detected by the TGMS 
vehicle. Further, this proposed paragraph requires that any revisions 
to the information in the report, as well as any revisions to the raw 
data from the TGMS, be documented, signed, and certified by a Sec.  
213.7(b) qualified employee in accordance with proposed paragraph (f), 
discussed below, and in a manner that correctly identifies the person 
who made the revision, the original information along with the 
revision(s), and the basis for the revision. This paragraph is meant to 
ensure accuracy of the data. It recognizes that the reports and/or the 
data may need to be modified as they are processed, but aims to ensure 
that any such modification is tracked so that both the source and the 
content of the modification is stored. This is important so that both 
the track owner and, if necessary, FRA can determine who made 
modification, what modifications were made, and the basis for such 
modification. This may also help track potential errors in the data 
from the TGMS.
    Proposed paragraph (e) would essentially mirror existing section 
Sec.  213.333(e) and would require that the reports required under 
proposed paragraph (d) contain sufficient location identification 
information to enable field forces to easily locate indicated 
exceptions. Whatever manner the track owner chooses to identify this 
information must allow both FRA and railroad employees to accurately 
locate the exception with repeatable accuracy.
    Proposed paragraph (f) would require track owners to initiate 
proper remedial action for defects detected by the TGMS immediately 
upon analysis by a Sec.  213.7(b) qualified person, or within 1 hour of 
detection (i.e., the moment the TGMS passes over the defect), whichever 
is sooner. As discussed above for proposed paragraph (d), FRA invites 
comment on this requirement. This one-hour requirement would thus start 
at different times for each defect. If, before the expiration of that 
one-hour time period, a Sec.  213.7(b) qualified person reviews the 
TGMS data, they must immediately initiate proper remedial action. There 
is an inherent danger whenever a train passes over a defective 
condition, and the remediation requirements proposed in this paragraph 
are intended to minimize that danger. FRA also notes that in the event 
a Sec.  213.7 qualified person determines that a defect detected by the 
TGMS is a false positive, or not actually a defective condition in the 
field, further remedial action would not be required. However, that 
determination must be noted and explained on the report required under 
proposed paragraph (d)(3), and the revision must be documented as 
required by proposed paragraph (d)(3).
    Proposed paragraph (f) would further require that exceptions 
detected on a crewed TGMS vehicle be remediated immediately. This 
follows from the first part of the paragraph since on a crewed vehicle, 
the data is being reviewed and analyzed in real time by an individual 
on the vehicle. Thus, when a defect is detected by the system, the 
track owner must immediately initiate proper remedial action.
    Proposed paragraph (g) would require that the reports, required by 
proposed paragraph (d), be interpreted and electronically signed or 
otherwise certified by a Sec.  213.7(b) qualified employee. This is 
meant to ensure that TGMS reports are reviewed by a properly trained 
individual who can interpret the reports, determine the required 
remedial action, and put such remedial action in place. By requiring 
that the report be electronically signed or otherwise certified, the 
person who reviews the report must attest that they properly 
interpreted the report. This can be accomplished through any means, 
such as an electronic signature, so long as it achieves the required 
purpose and properly identifies the person making the certification.
    Proposed paragraph (h) would cover situations where a track owner 
wants to conduct a TGMS inspection as well as a visual inspection from 
the same vehicle. A visual inspection meant to satisfy the frequency 
requirements of Sec.  213.233(c) may not be performed by any individual 
involved in the TGMS inspection. This includes any individual reviewing 
or interpreting any results from the TGMS vehicle as well as any 
operator of the TGMS vehicle. A visual inspection may be performed so 
long as it is by a dedicated track inspector whose sole responsibility 
is conducting a visual inspection and all requirements of Sec.  213.233 
are met.
    Proposed paragraph (i) would require specific training related to 
TGMS inspections. This would be in addition to any existing training 
requirements in 49 CFR parts 213 and 243,\11\ and would require that 
all Sec.  213.7 qualified persons who review or interpret TGMS reports 
be properly trained on, at minimum, interpreting TGMS data and reports, 
prioritizing and conducting site inspections to verify defects, and 
recordkeeping requirements. The training must be done in a manner and 
at a frequency to ensure the qualified individuals responsible for 
reviewing and/or interpreting TGMS reports have sufficient knowledge of 
at least the three listed subjects to accomplish their 
responsibilities. The track owners must make available to FRA 
sufficient records to show compliance with the requirements of proposed 
paragraph (i).
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    \11\ Training, Qualification, and Oversight for Safety-Related 
Railroad Employees.
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Section 213.241 Inspection Records

    Currently, Sec.  213.241 provides that track owners must keep a 
record of each inspection required to be performed under part 213, 
subpart F. Paragraph (b) of this section requires that each record of 
inspection, under certain sections, include specific information, be 
prepared on the day the inspection is made, and be signed by the person 
making the inspection. FRA proposes revising paragraph (b) by adding 
Sec. Sec.  213.234 and 213.239 to the list of sections that require 
inspections for which records must comply with the requirements of 
paragraph (b). Section 213.234 covers automated inspection of track 
constructed with concrete crossties. While Sec.  213.234(f) already

[[Page 84850]]

lists recordkeeping requirements specific for these types of 
inspections, it is important that those records also comply with the 
requirements of Sec.  213.241(b). Among other things, this would 
require that the record be signed or otherwise certified by the 
person(s) making the inspection. Section 213.239 covers special 
inspections. These special inspections are conducted after fire, flood, 
severe storms, or other events that might have damaged track, and a 
record of them is vitally important both to document findings following 
such events as well as to provide oversight to ensure track owners are 
completing such inspections when required. However, under current FRA 
enforcement practices, track owners have historically not been required 
to keep records of special inspections. FRA is not aware of any 
justification for this omission and proposes to require Sec.  213.239 
records to comply with Sec.  213.241(b).
    FRA proposes redesignating current paragraphs (c) through (j) as 
paragraphs (d) through (k), respectively, and revising some of them. 
FRA further proposes adding a new paragraph (c). Proposed paragraph (c) 
would list recordkeeping requirements for TGMS inspections performed 
under proposed Sec.  213.236. It would require that track owners 
maintain a copy of the report, required by proposed Sec.  213.236(d), 
for a period of two years following the TGMS inspection. Proposed 
paragraph (c)(1) would also require records specifying the date the 
inspection was made and the track segment involved. Proposed paragraph 
(c)(2) would require records to specify the date of any follow-up 
inspection, the type of inspection, location of any defects, the type 
and size of each defect, and the type and date of any remedial action 
taken. This is meant to cover any follow-up inspection done to field-
verify the TGMS data. It is essential to keep this information in order 
to identify potential issues with a TGMS system that might be causing 
errors in the geometry measurements.
    FRA proposes redesignating existing paragraph (c) as paragraph (d), 
existing paragraph (d) as paragraph (e), existing paragraph (e) as 
paragraph (f), existing paragraph (f) as paragraph (g), and existing 
paragraph (g) as paragraph (h). FRA proposes redesignating existing 
paragraph (h) as paragraph (i) and revising it by adding a sentence at 
the end requiring the most recent TGMS inspection report to be provided 
to the persons performing subsequent inspections of the track segment. 
The existing paragraph requires that track inspection records be made 
available to persons performing subsequent inspections, and requiring 
that they also have a copy of the past TGMS inspection report will 
ensure they continue to have access to the most up-to-date information 
on the condition of the track to better complete their inspections.
    FRA proposes redesignating existing paragraph (i) as paragraph (j), 
and existing paragraph (j) as paragraph (k). Redesignated paragraph (k) 
would address electronic recordkeeping systems and list requirements 
for such systems. FRA proposes adding a proposed paragraph (k)(3), 
which would require track owners to train their employees, who use the 
electronic recordkeeping system, on the proper use of the system. An 
employee who uses the system should know how to properly use the system 
to ensure they do not inadvertently compromise the system or the 
records it contains. FRA proposes redesignating existing paragraph 
(j)(3) as paragraph (k)(4), and adding proposed paragraph (k)(5), which 
would require the track owner to control accessibility to the 
electronic records and identify the individuals who have access. This 
is meant to ensure only the appropriate individuals have access to the 
system. FRA proposes redesignating existing paragraph (j)(4) as 
paragraph (k)(6), existing paragraph (j)(5) as paragraph (k)(7), and 
adding proposed paragraph (k)(8). This proposed paragraph would require 
track owners to maintain an information technology security program 
adequate to ensure the integrity of the electronic system. This would 
include preventing unauthorized access to the records. Finally, FRA 
proposes redesignating existing paragraph (k)(6) as paragraph (k)(9).

Section 213.333 Automated Vehicle-Based Inspection Systems

    FRA proposes to revise existing Sec.  213.333 to make it consistent 
with the requirements of proposed Sec.  213.236. Section 213.333 
addresses the requirements for TGMS inspections, currently required for 
high-speed track Classes 6 through 9 (paragraphs (a)(2) though (a)(4)), 
and for track Classes 1 through 5 where operations are at a qualified 
cant deficiency of more than 5 inches (paragraph (a)(1)). FRA proposes 
removing existing paragraph (a)(1) since proposed Sec.  213.236 will 
now cover required TGMS inspections on track Classes 1 through 5. FRA 
proposes redesignating existing paragraph (a)(2) as paragraph (a)(1) 
and revising it to increase the number of required TGMS inspections on 
track Class 6 from once per calendar year to three times within any 
365-day period, with not less than 90 days between inspections. This is 
the same inspection frequency in proposed section Sec.  213.236 that 
would apply to track Classes 1 through 5. FRA further proposes 
redesignating existing paragraph (a)(3) as paragraph (a)(2), and 
existing paragraph (a)(4) as paragraph (a)(3).
    FRA proposes to revise paragraph (c) to remove reference to track 
Classes 1 through 5, since those types of TGMS inspections will be 
covered by proposed Sec.  213.236. FRA proposes removing paragraph 
(c)(1) and combining the content of paragraph (c)(2) with the content 
of paragraph (c) so that it is a single paragraph with no sub-
paragraphs.
    FRA proposes to revise paragraph (d) to make it consistent with the 
requirements of proposed Sec.  213.236(d) by removing reference to the 
current requirement that the TGMS produce an output report within 24 
hours of the inspection. Further, FRA proposes to redesignate paragraph 
(d)(1) as paragraph (d)(2), and add proposed paragraph (d)(1), which 
would require that a TGMS transmit the data in a manner that enables 
the track owner to take proper remedial action within one hour of 
identification of any exception to the class of track the TGMS 
inspects. This one-hour time period would commence at the time the TGMS 
passes over the section of track containing the geometry defect. This 
means that track owners will need to have in place the resources and 
the procedures to ensure that, within one hour of the TGMS passing over 
that section of track, the measurements from the TGMS are processed and 
proper remedial action is put in place.
    As stated above for proposed Sec.  213.236(d), FRA invites comment 
on this one-hour remediation requirement, including potential issues 
involving areas of track where limitations, such as lack of cell 
coverage, may impair data transmission and possible solutions for these 
problems and estimated costs. If a commenter is of the opinion that a 
one-hour remediation requirement is not feasible, FRA requests that 
alternative timeframes be proposed and that the comment include a 
discussion about the potential risks of leaving a geometry defect in 
the track for a longer period of time and possible ways to mitigate 
such a risk.
    FRA proposes removing existing paragraph (d)(2), which discusses 
the requirements for an exception report, and replacing it with 
proposed paragraph (d)(3), which would require the TGMS provide a 
report containing a comprehensive listing of all exceptions to track 
geometry requirements detected

[[Page 84851]]

by the TGMS vehicle. Further, this proposed paragraph would require 
that any revisions to the information in the report, as well as any 
revisions to the raw data from the TGMS, be documented, signed and 
certified by a Sec.  213.305(b) qualified employee in accordance with 
proposed paragraph (f), discussed below, and in a manner that correctly 
identifies the person who made the revision, the original information 
along with the revision(s), and the basis for the revision. This 
paragraph is meant to ensure accuracy of the data. It recognizes that 
the reports and/or the data may need to be modified as they are 
processed, but aims to ensure that any such modification is tracked so 
that both the source and the content of the modification is stored. 
This is important so that the track owner and, if necessary, FRA can 
determine who made the modification, what modifications were made, and 
the basis for such modification. This may be especially useful for 
tracking potential errors in the data from the TGMS, as well as 
preventing malfeasance.
    FRA proposes slight revisions to existing paragraph (e), removing 
the word ``output'' from ``output report,'' so that it simply reads 
``report.'' This is meant to make the paragraph consistent with the 
terminology used in proposed paragraph (d)(3). FRA also proposes to 
correct the erroneous citation to paragraph (c) and change it to a 
reference to paragraph (d) since that is the paragraph that discusses 
the report generated by the TGMS.
    FRA proposes replacing existing paragraph (f), which gives track 
owners two days following a TGMS inspection to field-verify and 
initiate remedial action. FRA proposes replacing existing paragraph (f) 
with a new paragraph (f), which would require track owners to initiate 
proper remedial action for defects detected by the TGMS immediately 
upon analysis by a Sec.  213.305(b) qualified person, or within 1 hour 
of detection (i.e. the moment the TGMS passes over the defect), 
whichever is sooner. As discussed above for proposed paragraph (d), FRA 
invites comment on this requirement. This one-hour requirement would 
thus start at different times for each defect. If, before the 
expiration of that one-hour time period, a Sec.  213.305(b) qualified 
person reviews the TGMS data, they must immediately initiate proper 
remedial action. There is an inherent danger whenever a train passes 
over a defective condition, and the remediation requirements proposed 
in this paragraph are intended to minimize that danger. FRA also notes 
that, in the event a Sec.  213.305 qualified person determines that a 
defect detected by the TGMS is a false positive, or not actually a 
defective condition in the field, further remedial action would not be 
required, but that determination must be noted and explained on the 
report required under proposed paragraph (d)(3), and the revision must 
be documented as required by proposed paragraph (d)(3).
    Proposed paragraph (f) would further require that exceptions 
detected on a crewed TGMS vehicle be remediated immediately. This 
follows from the first part of the paragraph since, on a crewed 
vehicle, the data is being reviewed and analyzed in real time by an 
individual on the vehicle. Thus, when a defect is detected by the 
system, the track owner must immediately initiate proper remedial 
action.
    FRA proposes removing existing paragraph (g), which, among other 
things, requires that track owners maintain inspection records for one 
year. Since this paragraph deals specifically with inspection records, 
it is better suited to be included in existing Sec.  213.369. Thus, FRA 
proposes moving its requirements, with some revisions, to proposed 
Sec.  213.369(c), discussed below.
    FRA proposes replacing existing paragraph (g) with a new paragraph 
(g), which would require that the reports required by paragraph (d) be 
interpreted and electronically signed or otherwise certified by a Sec.  
213.305(b) qualified employee. This is meant to ensure that TGMS 
reports are reviewed by a properly trained individual who can interpret 
the reports, determine the required remedial action, and put such 
remedial action in place. By requiring that the report be 
electronically signed or otherwise certified, the person who reviews 
the report must attest that they properly interpreted the report. This 
can be accomplished through an electronic signature or another 
alternative means so long as it accomplishes the required purpose and 
properly identifies the person making the certification.
    FRA proposes adding paragraph (h), which would cover situations 
where a track owner wants to conduct a TGMS inspection as well as a 
visual inspection from the same vehicle. A visual inspection meant to 
satisfy the frequency requirements of Sec.  213.365(c) may not be 
performed by any individual involved in the TGMS inspection. This 
includes any individual reviewing or interpreting any results from the 
TGMS vehicle as well as any operator of the TGMS vehicle. A visual 
inspection may be performed so long as it is by a dedicated track 
inspector whose sole responsibility is conducting a visual inspection 
and all requirements of Sec.  213.365 are met.
    FRA proposes adding paragraph (i), which would require specific 
training related to TGMS inspections. This would be in addition to any 
existing part 213 and part 243 training requirements and would require 
that all Sec.  213.305 qualified persons who review or interpret TGMS 
reports be properly trained on, at a minimum, interpreting TGMS data 
and reports, prioritizing and conducting site inspections to verify 
defects, and recordkeeping requirements. The training must be done in 
such a way and at such a frequency that the qualified individuals 
responsible for reviewing and/or interpreting TGMS reports have 
sufficient knowledge of at least the three listed subjects to 
accomplish their responsibilities. Track owners must make available to 
FRA sufficient records to show compliance with the requirements of 
proposed paragraph (i).

Section 213.369 Inspection Records

    Proposed revisions to this section are intended to mirror the 
relevant proposed revisions to Sec.  213.241, discussed above. FRA 
proposes removing the part of paragraph (b), which states, ``Except as 
provided in paragraph (e) of this section.'' Since there is no 
exception stated in paragraph (e), or elsewhere in Sec.  213.369, it is 
unclear what this statement originally referred to and the language 
appears to be unnecessary. FRA also proposes adding Sec.  213.367 to 
the list of sections that require inspections for which records must 
comply with the requirements of paragraph (b). Section 213.367 covers 
special inspections. These special inspections are conducted after 
fire, flood, severe storms, or other events that might have damaged 
track, and a record of them is vitally important both to document their 
findings as well as oversight to ensure track owners are completing 
such inspections when required. However, under current FRA enforcement 
practices, track owners have historically not been required to keep 
records of special inspections. FRA is not aware of any justification 
for this omission and proposes requiring Sec.  213.367 records comply 
with Sec.  213.369(b). Further, FRA proposes slight revisions to the 
second sentence of paragraph (b) to make it mirror Sec.  213.214. Aside 
from one purely grammatical change, the proposed revision would change 
``nature of any deviation'' to ``location and nature of any 
deviation.'' FRA is confident inspection records already include this 
information and that this change will have no burden upon the industry.

[[Page 84852]]

    FRA proposes redesignating current paragraphs (c) through (i) as 
paragraphs (d) through (j), respectively, revising some of them, and 
adding a new paragraph (c). Proposed paragraph (c), which mirrors, with 
some revisions, existing Sec.  213.333(g), would list recordkeeping 
requirements for TGMS inspections performed under proposed Sec.  
213.333. It would require track owners to maintain a copy of the 
report, required by proposed Sec.  213.333(d), for a period of two 
years following the TGMS inspection. Currently, Sec.  213.333(g) 
requires that these records be retained for one year. FRA is proposing 
to increase the retention period to two years. Proposed paragraph 
(c)(1) would also require records to specify the date the inspection 
was made and the track segment involved. Proposed paragraph (c)(2) 
would require records specify the date of any follow-up inspection, the 
type of inspection, location of any defects, the type and size of each 
defect, and the type and date of any remedial action taken. This is 
meant to cover any follow-up inspection done to field-verify the TGMS 
data. It is essential to keep this information in order to identify 
potential issues with a TGMS systems that might be causing errors in 
the geometry measurements.
    FRA proposes redesignating existing paragraph (c) as paragraph (d), 
existing paragraph (d) as paragraph (e), and existing paragraph (e) as 
paragraph (f). FRA also proposes redesignating existing paragraph (f) 
as paragraph (g) and revising it by adding a sentence at the end 
requiring that the most recent TGMS inspection report be provided to 
the persons performing subsequent inspections of the track segment. The 
existing paragraph requires that track inspection records be made 
available to persons performing subsequent inspections, and requiring 
that they also have a copy of the past TGMS inspection report will 
ensure they continue to have access to the most up-to-date information 
on the condition of the track to better complete their inspections.
    FRA proposes redesignating existing paragraph (g) as paragraph (h), 
and existing paragraph (h) as paragraph (i). Redesignated paragraph (i) 
would address electronic recordkeeping systems and lists specific 
requirements for such systems. FRA proposes to add a paragraph (i)(3), 
which would require track owners to train their employees who use the 
electronic recordkeeping system on the proper use of the system. An 
employee who uses the system should know how to properly use it to 
ensure they do not inadvertently compromise the system or the records 
it contains. FRA proposes redesignating existing paragraph (h)(3) as 
paragraph (i)(4), and adding proposed paragraph (i)(5), which would 
require the track owner to control accessibility to the electronic 
records and identify the individuals who have access. This is meant to 
ensure only the proper individuals have access to the system. FRA 
proposes redesignating existing paragraph (h)(4) as paragraph (i)(6), 
and existing paragraph (h)(5) as paragraph (i)(7), and adding proposed 
paragraph (i)(8). This proposed paragraph would require track owners to 
maintain an information technology security program adequate to ensure 
the integrity of the electronic system. This would include preventing 
unauthorized access to the records. Finally, FRA proposes redesignating 
existing paragraph (h)(6) as paragraph (i)(9), and existing paragraph 
(i) as paragraph (j).

V. Regulatory Impact and Notices

A. Executive Order 12866 as Amended by Executive Order 14094

    The proposed rule is a nonsignificant regulatory action within the 
meaning of Executive Order 12866, as amended by Executive Order 14094, 
``Modernizing Regulatory Review,'' \12\ and DOT Order 2100.6A 
(``Rulemaking and Guidance Procedures''). FRA made this determination 
by finding that the economic effects of the proposed rulemaking will 
not exceed the $200 million annual threshold defined by Executive Order 
12866, as amended by Executive Order 14094. FRA expects this proposed 
rule will improve railroad safety by codifying existing industry 
practices and requiring track owners to take proper remedial action 
within one hour of the TGMS identifying an exception. FRA also expects 
the proposed rule will encourage future improvements to ATI 
technologies.
---------------------------------------------------------------------------

    \12\ 88 FR 21879 (Apr. 6, 2023).
---------------------------------------------------------------------------

    FRA complied with OMB Circular A-4 when accounting for the NPRM 
costs relative to a baseline condition. \13\ Typically, a baseline 
represents a best judgement about what the world would look like in the 
absence of the regulatory intervention. FRA accounts for the NPRM costs 
as any change from current industry practice. FRA's research indicates 
that all 64 railroads covered by this proposed rulemaking are already 
voluntarily performing TGMS inspections at or above the frequency that 
would be required by the NPRM. Therefore, the affected railroads would 
not incur any additional costs related to conducting the inspections.
---------------------------------------------------------------------------

    \13\ Railroad use of TGMS and ATGMS is generally not required 
for Class 1 through 5 track, and supplements FRA-required visual 
inspections and other automated inspections required under 49 CFR 
part 213.
---------------------------------------------------------------------------

    However, proposed Sec. Sec.  213.236(d)(1) and 213.333(d)(1) would 
require qualifying TGMS vehicles to transmit inspection data in a 
manner that allows the track owner to take proper remedial action no 
later than one hour following the identification of any exception 
identified by the TGMS system. The one-hour timeframe differs from 
current industry practice, where railroads remediate track defects 
based on their operating rules or practices and can vary from 
immediately--on crewed TGMS vehicles--to 24 hours or more on uncrewed 
ATGMS. Because this proposed rule would not change the inspection 
frequency from current industry practice, the only slow order cost 
relevant to this proposal is the time between the one-hour timeframe 
for remediation and the timeframe each railroad currently follows by 
practice. FRA requests comments regarding the potential increased 
number, duration, and cost of TGMS track exception-related slow orders 
on freight and passenger rail service.
    To quantify the one-hour remediation cost, FRA estimates the 64 
affected railroads would need to hire a total of 94 new full-time MOW 
employees to ensure proper remediation within the required timeframe. 
For FRA's estimate, remediation refers to a Sec.  213.7(b) qualified 
employee reviewing the data, determining the exception is not a false 
positive, and contacting the dispatcher to place an appropriate speed 
restriction. FRA estimated that railroads would need to hire between 
one and six employees depending on the railroad's operations and number 
of required inspections. The additional employee costs would be 
approximately $13.6 million annually and $122.5 million over 10 years 
at the 2-percent discount rate as shown in Table 1.
    The proposed rule would also require additional reporting of all 
track geometry exceptions detected by the TGMS vehicle. The report, and 
any revisions, must be documented, signed, and certified by a Sec.  
213.7(b) qualified employee, and made available to FRA upon request. 
The track owner is also responsible for the cost of training 
maintenance employees, reporting requirements, and report storage and 
maintenance.
    FRA estimates the new training requirement in Sec. Sec.  213.236(i) 
and 213.333(i) affects 10,000 railroad MOW employees (Group No 
300).\14\ Each

[[Page 84853]]

worker will require one hour of training in the first year after the 
rule is published. FRA also assumed a 2 percent annual attrition rate 
among railroad employees. The estimated replacement employees will need 
to be trained. MOW workers' hourly salary is $39.88, hours were 
considered at the burdened wage rate by multiplying the actual rate by 
175 percent. This would result in a 10-year total training cost of 
approximately $837,000 or approximately $810,000 discounted at a 
present value of 2 percent. The total costs of the proposed rule would 
be approximately $124 million over 10 years discounted at a present 
value of 2 percent. These costs are shown in Table 1.
---------------------------------------------------------------------------

    \14\ The dollar equivalent cost is derived from the 2023 Surface 
Transportation Board Full Year Wage A&B data series using the 
employee group 300 hourly wage rate that includes 75-percent 
overhead charges.

                                     Table 1--Ten Year Costs in 2023 Dollars
----------------------------------------------------------------------------------------------------------------
                                                                   Present value   Present value   Present value
                     Impact                        Undiscounted       7% ($)          3% ($)          2% ($)
----------------------------------------------------------------------------------------------------------------
Employment......................................    $122,808,067     $95,839,164    $116,397,525    $122,570,434
Training........................................         837,480         750,278         796,637         809,594
                                                 ---------------------------------------------------------------
    Total cost..................................     123,645,547      96,589,442     117,194,162     123,380,028
----------------------------------------------------------------------------------------------------------------


 
 
----------------------------------------------------------------------------------------------------------------
                                      Impact....................      Annualized      Annualized      Annualized
                                                                              7%              3%              2%
                                                                             ($)             ($)             ($)
                                     ---------------------------------------------------------------------------
                                      Employment................      13,645,341      13,645,341      13,645,341
                                      Training..................         106,822          93,390          90,129
                                                                 -----------------------------------------------
 
    Total cost......................  13,752,163................      13,738,731      13,735,470
----------------------------------------------------------------------------------------------------------------

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 \15\ and Executive Order 
13272, ``Proper Consideration of Small Entities in Agency Rulemaking,'' 
\16\ require agency review of proposed and final rules to assess their 
impacts on small entities. An agency must prepare an Initial Regulatory 
Flexibility Analysis (IRFA) unless it determines and certifies that a 
rule, if promulgated, would not have a significant economic impact on a 
substantial number of small entities. FRA has not determined whether 
this proposed rule would have a significant economic impact on a 
substantial number of small entities and has therefore prepared this 
IRFA. FRA seeks public comment from small entities on the economic 
impacts of this proposed rule.
---------------------------------------------------------------------------

    \15\ 5 U.S.C. 601 et seq.
    \16\ 67 FR 53461 (Aug. 16, 2002).
---------------------------------------------------------------------------

1. Reasons for Considering Agency Action
    FRA seeks to revise its regulations governing the minimum safety 
requirements for railroad track. The proposed changes would require all 
Class I and Class II railroads, intercity passenger railroads, and 
commuter railroads to operate qualifying TGMS vehicles over mainline 
and controlled siding track at specific frequencies.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    This rulemaking seeks to improve compliance with the TSS by 
requiring all Class I railroads, Class II railroads, intercity 
passenger railroads, and commuter railroads to operate a qualifying 
TGMS three times within a 365-day period over all Class 1 through 5 
mainline and controlled siding track that transports: (1) annual 
tonnage greater than 10 MGT; (2) regularly scheduled passenger rail 
service; or (3) hazardous materials. Qualified TGMS inspections are 
already required for Class 6 through 9 track at varying frequencies, as 
well as Class 1 through 5 track for operations at a qualified cant 
deficiency of more than 5 inches. The proposed rule would also increase 
the required frequency of TGMS inspections on Class 6 track from once 
per calendar year to three times within a 365-day period.
    FRA's research indicates that all the railroads affected by this 
rulemaking are already performing TGMS inspections at or above the 
frequency that would be required by this NPRM. Thus, this proposed 
rulemaking would codify this industry practice as well as set forth 
requirements that include remedial action of detected defects within a 
specified time limit. FRA expects the NPRM to improve compliance with 
the TSS and potentially reduce derailments.
3. A Description of and, Where Feasible, an Estimate of, the Number of 
Small Entities to Which the Proposed Rule Would Apply
    The Regulatory Flexibility Act of 1980 requires a review of 
proposed and final rules to assess their impact on small entities, 
unless the Secretary certifies that the rule would not have a 
significant economic impact on a substantial number of small entities. 
``Small entity'' is defined in 5 U.S.C. 601 as a small business that is 
independently owned and operated and is not dominant in its field of 
operation. The U.S. Small Business Administration (SBA) has authority 
to regulate issues related to small businesses and stipulates in its 
size standards that a ``small entity'' in the railroad industry 
includes a for-profit ``line-haul railroad'' that has fewer than 1,500 
employees and a ``short line railroad'' with fewer than 1,500 
employees.\17\
---------------------------------------------------------------------------

    \17\ ``Size Eligibility Provisions and Standards,'' 13 CFR part 
121, subpart A. NAIC Code 482111 and 482112 indicate ``Line Haul'' 
and ``Short Line'' railroads respectively. Per SBA, any firm under 
NAICS code 48112 that employs more than 1,500 employees cannot 
qualify as a small business. See U.S. Small Business Administration, 
Table of Small Business Size Standards Matched to North American 
Industry Classification Codes, effective March 3, 2024, available at 
https://www.ecfr.gov/current/title-13/chapter-I/part-121#121.201.
---------------------------------------------------------------------------

    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Under that authority, FRA has published a final statement of 
agency policy that formally establishes ``small

[[Page 84854]]

entities'' or ``small businesses'' as railroads, contractors, and 
hazardous materials shippers that meet the revenue requirements of a 
Class III railroad as set forth in 49 CFR 1201.1-1, which is $46.4 \18\ 
million or less in inflation-adjusted annual revenues; and commuter 
railroads or small governmental jurisdictions that serve populations of 
50,000 or less.\19\ The $46.4 million limit is based on the Surface 
Transportation Board's revenue threshold for a Class III railroad 
carrier. Railroad revenue is adjusted for inflation by applying a 
revenue deflator formula in accordance with 49 CFR 1201.1-1.\20\
---------------------------------------------------------------------------

    \18\ The Class III railroad revenue threshold is $46,352,455 or 
less, for 2022. (The Class II railroad threshold is between 
$46,352,455 and $1,032,002,719; and the Class I railroad threshold 
is $1,023,002,719 or more.) See Surface Transportation Board 
Regulatory Deflators at https://www.stb.gov/reports-data/economic-data/.
    \19\ Codified at appendix C to 49 CFR part 209 as of 11/27/2023, 
available at https://www.ecfr.gov/current/title-49/subtitle-B/chapter-II/.
    \20\ See Surface Transportation Board Decision, Docket No. EP 
748, Indexing the Annual Operating Revenues of Railroads, Decided 
June 4, 2020, available at https://prod.stb.gov/reports-data/economic-data/railroad-revenue-deflator-factors/.
---------------------------------------------------------------------------

    Therefore, FRA assumes that the proposed rule, if issued, would not 
negatively impact any small entities as set forth in 49 CFR 1201.1-1. 
FRA invites comment, particularly from members of the public who 
believe there will be a significant negative impact on a substantial 
number of small communities or Class III railroads.
4. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rule, Including an Estimate of the Class 
of Small Entities That Will be Subject to the Requirements and the Type 
of Professional Skill Necessary for Preparation of the Report or Record
    FRA does not expect projected reporting, recordkeeping, and other 
costs of compliance with this NPRM to affect small entities.
    Small entities that fall below the FRA size standards, including 
Class III railroads, commuter rail passenger rail services, and small 
government jurisdictions serving populations of 50,000 or less, would 
not bear any short- or long-term costs.
5. Identification, to the Extent Practicable, of All Relevant Federal 
Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule
    FRA is not aware of any relevant Federal rule that duplicates, 
overlaps with, or conflicts with the proposed rule.
6. A Description of Significant Alternatives to the Rule
    FRA is proposing this rulemaking to codify industry best practice 
and ensure the TGMS inspections are conducted at least 3 times per 
year, detected defects are remediated within one hour of detection, 
railroad employees have sufficient training to implement these 
requirements, and that TGMS inspection data and records are maintained 
in a secure and accurate manner.
    FRA considered several regulatory alternatives before deciding to 
impose the one-hour time limit to remediate TGMS-identified defects. 
FRA considered requiring track owners to immediately remediate a 
detected defect. FRA rejected this alternative as it would essentially 
prohibit the use of ATGMS. ATGMS is uncrewed and relies on the 
transmission of the data for analysis at a different location, meaning 
there is no practical way to immediately remediate identified defects. 
FRA also considered requiring remediation of a defect within 48 hours 
of detection as this is the current requirement for TGMS inspections 
for high-speed track. FRA's research concluded that railroads are not 
utilizing the allowed 48 hours and are remediating defects as soon as 
possible. Further, FRA determined that 48 hours was too long to allow a 
detected geometry defect to remain in the track and could increase the 
risk of a derailment. FRA instead chose to impose a one-hour time limit 
to remediate any TGMS identified defect.

C. Paperwork Reduction Act

    FRA is submitting the information collection requirements in this 
proposed rule to the Office of Management and Budget (OMB) \21\ for 
review and approval in accordance with the Paperwork Reduction Act of 
1995.\22\ Please note that any new or revised requirements, as proposed 
in this NPRM, are marked by asterisks (*) in the table below. The 
sections that contain the proposed and current information collection 
requirements under OMB Control No. 2130-0010 and the estimated time to 
fulfill each requirement are as follows:
---------------------------------------------------------------------------

    \21\ FRA will be using the OMB control number (OMB No. 2130-
0010) for this information collection.
    \22\ 44 U.S.C. 3501 et seq.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                      Total
                                                                                              Average time per        annual      Wage      Total cost
             CFR section                  Respondent universe     Total annual responses          response            burden      rate    equivalent in
                                                                                                                      hours                U.S. dollar
                                                                 (A)....................  (B)....................  (C = A * B)             (D = C * wage
                                                                                                                                             rates) \23\
--------------------------------------------------------------------------------------------------------------------------------------------------------
213.4(f)--Excepted track.............  784 railroads...........  15 notices.............  10 minutes.............         2.50    89.13          $222.83
--Notification to FRA about removal
 of excepted track
213.5(c)--Responsibility for           784 railroads...........  15 notices.............  1 hour.................        15.00    89.13         1,336.95
 compliance.
--Notification of assignment to FRA
213.7(a)(b)--Designations: Names on    784 railroads...........  2,500 names............  10 minutes.............       416.67    89.13        37,137.80
 list with written authorizations.
213.17(a)--Waivers...................  784 railroads...........  10 petitions...........  2 hours................        20.00    89.13         1,782.60
213.57(e)--Curves; elevation and       784 railroads...........  4 requests.............  8 hours................        32.00    89.13         2,852.16
 speed limitations.
--Request to FRA for vehicle type
 approval
--(f) Written notification to FRA      784 railroads...........  4 notifications........  2 hours................         8.00    89.13           713.04
 prior to implementation of higher
 curving speeds.

[[Page 84855]]

 
--(g) Written consent of track owners  784 railroads...........  4 written consents.....  45 minutes.............         3.00    89.13           267.39
 obtained by railroad providing
 service over that track.
213.110(a)--Gage restraint             784 railroad............  1 notification.........  45 minutes.............         0.75    89.13            66.85
 measurement systems (GRMS).
--Implementing GRMS
--Notices & reports
--(g) GRMS vehicle output reports....  784 railroad............  1 report...............  5 minutes..............         0.08    89.13             7.13
--(h) GRMS vehicle exception reports.  784 railroad............  1 report...............  5 minutes..............         0.08    89.13             7.13
--(j) GRMS/PTLF--procedures for data   784 railroad............  1 documented procedure.  1 hour.................         1.00    89.13            89.13
 integrity.
--(n) GRMS inspection records........  784 railroad............  2 records..............  30 minutes.............         1.00    89.13            89.13
213.118(a)-(c)--Continuous welded      438 railroads...........  10 plans...............  4 hours................        40.00    89.13         3,565.20
 rail (CWR).
--Revised plans w/procedures for CWR
--(d) Notification to FRA and RR       438 railroads...........  750 notices............  15 seconds.............         3.13    89.13           278.98
 employees of CWR plan effective date.
--(e) Written submissions after plan   438 railroads...........  5 written submissions..  2 hours................        10.00    89.13           891.30
 disapproval.
--(e) Final FRA disapproval and plan   438 railroads...........  5 amended plans........  1 hour.................         5.00    89.13           445.65
 amendment.
213.234(e)--Automated inspection of    30 railroads............  125 reports............  15 minutes.............        31.25    69.60         2,175.00
 track constructed with concrete
 crossties.
--Exception reports listing all
 exception to Sec.   213.109(d)(4)
 Added requirement and burden hours
 from 2130-0592
--(f) Automated inspection of track    30 railroads............  2,000 records..........  30 minutes.............     1,000.00    89.13        89,130.00
 constructed with concrete crossties.
--Recordkeeping requirements
--(g) Procedure for integrity of data  30 railroads............  30 revised procedures..  2 hours................        60.00   118.46         7,107.60
 --Track owners to institute
 procedures for maintaining the
 integrity of the data collected by
 the measurement system Added
 requirement and burden hours from
 2130-0592.
--(h)(3) Training Track owners to      30 railroads............  2,250 records of         5 minutes..............       187.50   $69.60        13,050.00
 provide annual training in handling                              trained employees.
 rail seat deterioration exceptions
 to all persons designated as fully
 qualified under Sec.   213.7 and
 whose territories are subject to the
 requirements of Sec.   213.234--
 Recordkeeping. Added requirement and
 burden hours from 2130-0592.
* 213.236(d)(3)--Automated vehicle-    64 railroads............  7,500 report records...  10 minutes.............        1,275    89.13       113,640.75
 based inspection systems. TGMS Track
 classes 1 through 5 report records
 (New proposed requirement).
*--(i) training records (New proposed  9,500 employees.........  3,167 training records.  5 minutes..............       250.96    89.13        22,368.06
 requirement).
213.237(b)(2)--Inspection of Rail....  65 railroads............  4 requests.............  15 minutes.............         1.00    89.13            89.13

[[Page 84856]]

 
--Detailed request to FRA to change
 designation of a rail inspection
 segment or establish a new segment
--(b)(3) Notification to FRA and all   65 railroads............  1 notice to FRA + 15     15 minutes.............         4.00    89.13           356.52
 affected employees of designation's                              bulletins.
 effective date after FRA's approval/
 conditional approval.
--(d) Notice to FRA that service       65 railroads............  4 notices..............  15 minutes.............         1.00    89.13            89.13
 failure rate target in paragraph (a)
 of this section is not achieved.
--(d)--Explanation to FRA as to why    65 railroads............  4 letters of             15 minutes.............         1.00    89.13            89.13
 performance target was not achieved                              explanation/plans.
 and provision to FRA of remedial
 action plan.
213.238--Qualified operators.........  3 railroads + 5 testing   250 records............  5 minutes..............        20.83    89.13         1,856.58
                                        entities.
--Written or electronic of
 qualification
213.240(b)--Continuous Rail Testing..  12 railroads............  4 procedures...........  8 hours................        32.00    89.13         2,852.16
--Procedures for conducting
 continuous testing
----(c) Type of rail test (continuous  12 railroads............  25,000 documents/        2 seconds..............        13.89    89.13         1,238.02
 or stop-and-verify).                                             records.
--Record
----(c)--Type of rail test             12 railroads............  100 documents..........  1 minute...............         1.67    89.13           148.85
 (continuous or stop-and-verify).
--Documented changes
--(g) Annual reports to FRA..........  12 railroads............  12 reports.............  4 hours................        48.00    89.13         4,278.24
* 213.241--Inspection records Class I  784 railroads...........  1,400,000 records......  10 minutes.............   238,000.00    89.13    21,212,940.00
 through 5. (Revised requirement).
213.303(b)--Responsibility for         2 railroad..............  5 notices..............  30 minutes.............         2.50    89.13           222.83
 compliance.
--Notification of assignment to FRA
213.305(c)(4)--Designation of          2 railroads.............  20 written documents...  30 minutes.............        10.00    89.13           891.30
 qualified individuals; general
 qualifications.
--Written authorization for remedial
 actions
--(e) Railroads produced designation   2 railroads.............  200 records............  10 minutes.............        33.33    89.13         2,970.70
 record upon FRA request.
213.317(a) through (b)--Waivers......  2 railroads.............  2 petitions............  8 hours................        16.00    89.13         1,426.08
213.329(e)--Curves, elevation, and     2 railroads.............  2.00 cover letters +     30.00 minutes + 16.00          33.50    89.13         2,985.86
 speed limitations--FRA approval of                               2.00 technical reports   hours + 15.00 minutes.
 qualified vehicle types based on                                 + 2.00 diagrams.
 results of testing.
--(f) Written notification to FRA 30   2 railroads.............  2 notices..............  2 hours................         4.00    89.13           356.52
 days prior to implementation of
 higher curving speeds.
--(g) Written consent of other         2 railroads.............  2 written consents.....  45 minutes.............         1.50    89.13           133.70
 affected track owners by railroad.
* 213.333(d)--Automated vehicle-based  5 railroads.............  150 reports............  10 minutes.............        25.50    89.13         2,272.82
 inspection systems. TGMS track
 classes 6-9 report records. (Revised
 requirement).
*--(i) training records (New proposed  500 employees...........  167 training records...  5 mins.................        13.36    89.13         1,190.78
 requirement).

[[Page 84857]]

 
213.341(b)-(d)--Initial inspection of  2 railroads.............  800 records............  2 minutes..............        26.67    89.13         2,377.10
 new rail & welds.
--Inspection records
213.343(a)-(e)--CWR..................  2 railroads.............  2 plans................  4 hours................         8.00    89.13           713.04
--Procedures for installations and
 adjustments of CWR.
--(h) Recordkeeping requirements.....  2 railroads.............  8,000 records..........  2 minutes..............       266.67    89.13        23,768.30
213.345(a)-(c)--Vehicle qualification  2 railroads.............  2 program plans........  120 hours..............       240.00    89.13        21,391.20
 testing.
--Vehicle qualification program for
 all vehicle types operating at track
 Class 6 speeds or above.
--(d) Previously qualified vehicle     2 railroads.............  2 program plans........  8 hours................        16.00    89.13         1,426.08
 types of qualification programs.
--(h) Written consent of other         2 railroads.............  4 written consents.....  30 minutes.............         2.00   118.46           236.92
 affected track owners by railroad.
213.369--Visual track inspection       5 railroads.............  15,273 records.........  10 minutes.............     2,596.41    89.13       231,418.02
 records (Revised requirement).
                                      ------------------------------------------------------------------------------------------------------------------
    Total \24\.......................  784 railroads...........  1,468,401 responses....  N/A....................      244,781  .......       21,814,944
--------------------------------------------------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. Organizations and individuals 
desiring to submit comments on the collection of information 
requirements or to request a copy of the paperwork package submitted to 
OMB should contact Ms. Arlette Mussington, Information Collection 
Clearance Officer, at email: <a href="/cdn-cgi/l/email-protection#f091829c95848495de9d858383999e97849f9eb0949f84de979f86"><span class="__cf_email__" data-cfemail="7f1e0d131a0b0b1a51120a0c0c1611180b10113f1b100b51181009">[email protected]</span></a> or telephone: 
(571) 609-1285 or Ms. Joanne Swafford, Information Collection Clearance 
Officer, at email: <a href="/cdn-cgi/l/email-protection#89e3e6e8e7e7eca7fafee8efefe6fbedc9ede6fda7eee6ff"><span class="__cf_email__" data-cfemail="33595c525d5d561d40445255555c415773575c471d545c45">[email protected]</span></a> or telephone: (757) 897-
9908.
---------------------------------------------------------------------------

    \23\ The dollar equivalent cost is derived from the 2023 Surface 
Transportation Board Full Year Wage A&B data series using the 
appropriate employee group hourly wage rate that includes 75-percent 
overhead charges.
    \24\ Totals may not add up due to rounding.
---------------------------------------------------------------------------

    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal. FRA is not authorized to 
impose a penalty on persons for violating information collection 
requirements that do not display a current OMB control number, if 
required.

D. Federalism Implications

    Executive Order 13132, Federalism,\25\ requires FRA to develop an 
accountable process to ensure ``meaningful and timely input by State 
and local officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' are defined in Executive Order 13132 to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.'' Under Executive Order 13132, the agency may not issue 
a regulation with federalism implications that imposes substantial 
direct compliance costs and that is not required by statute, unless the 
Federal Government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, the agency 
consults with State and local governments, or the agency consults with 
State and local government officials early in the process of developing 
the regulation. Where a regulation has federalism implications and 
preempts State law, the agency seeks to consult with State and local 
officials in the process of developing the regulation.
---------------------------------------------------------------------------

    \25\ 64 FR 43255 (Aug. 10, 1999).
---------------------------------------------------------------------------

    FRA has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132. FRA has 
determined that this proposed rule has no federalism implications, 
other than the possible preemption of State laws under 49 U.S.C. 20106. 
Therefore, the consultation and funding requirements of Executive Order 
13132 do not apply, and preparation of a federalism summary impact 
statement for the proposed rule is not required.

E. International Trade Impact Assessment

    The Trade Agreements Act of 1979 \26\ prohibits Federal agencies 
from

[[Page 84858]]

engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and, where appropriate, that they be the basis for U.S. 
standards. This proposed rule is purely domestic in nature and is not 
expected to affect trade opportunities for U.S. firms doing business 
overseas or for foreign firms doing business in the United States.
---------------------------------------------------------------------------

    \26\ 19 U.S.C. ch. 13.
---------------------------------------------------------------------------

F. Environmental Impact

    FRA has evaluated this proposed rule consistent with the National 
Environmental Policy Act \27\ (NEPA), the Council on Environmental 
Quality's NEPA implementing regulations,\28\ and FRA's NEPA 
implementing regulations \29\ and determined that it is categorically 
excluded from environmental review and therefore does not require the 
preparation of an environmental assessment (EA) or environmental impact 
statement (EIS). Categorical exclusions (CEs) are actions identified in 
an agency's NEPA implementing regulations that do not normally have a 
significant impact on the environment and therefore do not require 
either an EA or EIS.\30\ Specifically, FRA has determined that this 
proposed rule is categorically excluded from detailed environmental 
review.\31\
---------------------------------------------------------------------------

    \27\ 42 U.S.C. 4321 et seq.
    \28\ 40 CFR parts 1500 through 1508.
    \29\ 23 CFR part 771.
    \30\ 40 CFR 1508.4.
    \31\ See 23 CFR 771.116(c)(15) (categorically excluding 
``[p]romulgation of rules, the issuance of policy statements, the 
waiver or modification of existing regulatory requirements, or 
discretionary approvals that do not result in significantly 
increased emissions of air or water pollutants or noise'').
---------------------------------------------------------------------------

    The main purpose of this rulemaking is to require the use of TGMS 
technology at specific frequencies. This rule would not directly or 
indirectly impact any environmental resources and would not result in 
significantly increased emissions of air or water pollutants or noise. 
In analyzing the applicability of a CE, FRA must also consider whether 
unusual circumstances are present that would warrant a more detailed 
environmental review.\32\ FRA has concluded that no such unusual 
circumstances exist with respect to this proposed rule, and it meets 
the requirements for categorical exclusion.\33\
---------------------------------------------------------------------------

    \32\ 23 CFR 771.116(b).
    \33\ 23 CFR 771.116(c)(15).
---------------------------------------------------------------------------

    Pursuant to Section 106 of the National Historic Preservation Act 
and its implementing regulations, FRA has determined this undertaking 
has no potential to affect historic properties.\34\ FRA has also 
determined that this rulemaking does not approve a project resulting in 
a use of a resource protected by Section 4(f).\35\ Further, FRA 
reviewed this proposed rulemaking and found it consistent with 
Executive Order 14008, ``Tackling the Climate Crisis at Home and 
Abroad.''
---------------------------------------------------------------------------

    \34\ See 16 U.S.C. 470.
    \35\ See Department of Transportation Act of 1966, as amended 
(Pub. L. 89-670, 80 Stat. 931); 49 U.S.C. 303.
---------------------------------------------------------------------------

G. Executive Order 12898 (Environmental Justice)

    Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations,'' and DOT 
Order 5610.2C \36\ require DOT agencies to achieve environmental 
justice as part of their mission by identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects, including interrelated social and economic 
effects, of their programs, policies, and activities on minority 
populations and low-income populations. The DOT Order instructs DOT 
agencies to address compliance with Executive Order 12898 and 
requirements within the DOT Order in rulemaking activities, as 
appropriate, and also requires consideration of the benefits of 
transportation programs, policies, and other activities where minority 
populations and low-income populations benefit, at a minimum, to the 
same level as the general population as a whole when determining 
impacts on minority and low-income populations. FRA has evaluated this 
proposed rule under Executive Order 12898 and the DOT Order and has 
determined it would not cause disproportionately high and adverse human 
health and environmental effects on minority populations or low-income 
populations.
---------------------------------------------------------------------------

    \36\ Available at https://www.transportation.gov/sites/dot.gov/files/Final-for-OST-C-210312-003-signed.pdf.
---------------------------------------------------------------------------

H. Unfunded Mandates Reform Act of 1995

    Under section 201 of the Unfunded Mandates Reform Act of 1995,\37\ 
each Federal agency ``shall, unless otherwise prohibited by law, assess 
the effects of Federal regulatory actions on State, local, and Tribal 
governments, and the private sector (other than to the extent that such 
regulations incorporate requirements specifically set forth in law).'' 
Section 202 of the Act \38\ further requires that ``before promulgating 
any general notice of proposed rulemaking that is likely to result in 
promulgation of any rule that includes any Federal mandate that may 
result in the expenditure by State, local, and Tribal governments, in 
the aggregate, or by the private sector, of $100,000,000 or more 
(adjusted annually for inflation) in any 1 year, and before 
promulgating any final rule for which a general notice of proposed 
rulemaking was published, the agency shall prepare a written 
statement'' detailing the effect on State, local, and Tribal 
governments and the private sector. This proposed rule would not result 
in the expenditure, in the aggregate, of $100,000,000 or more (as 
adjusted annually for inflation) in any one year, and thus preparation 
of such a statement is not required.
---------------------------------------------------------------------------

    \37\ Public Law 104-4; 2 U.S.C. 1531.
    \38\ 2 U.S.C. 1532.
---------------------------------------------------------------------------

I. Energy Impact

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' requires 
Federal agencies to prepare a Statement of Energy Effects for any 
``significant energy action.'' \39\ FRA evaluated this proposed rule 
under Executive Order 13211 and determined that this regulatory action 
is not a ``significant energy action'' within the meaning of Executive 
Order 13211.
---------------------------------------------------------------------------

    \39\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------

J. Privacy Act Statement

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. DOT posts these 
comments, without edit, to www.regulations.gov, as described in the 
system of records notice, DOT/ALL-14 FDMS, accessible through 
www.dot.gov/privacy. To facilitate comment tracking and response, we 
encourage commenters to provide their name, or the name of their 
organization; however, submission of names is completely optional. 
Whether or not commenters identify themselves, all timely comments will 
be fully considered. If you wish to provide comments containing 
proprietary or confidential information, please contact the agency for 
alternate submission instructions.

K. Executive Order 13175 (Tribal Consultation)

    FRA has evaluated this proposed rule in accordance with the 
principles and criteria contained in Executive Order

[[Page 84859]]

13175, Consultation and Coordination with Indian Tribal Governments, 
dated November 6, 2000. The proposed rule would not have a substantial 
direct effect on one or more Indian Tribes, would not impose 
substantial direct compliance costs on Indian Tribal governments, and 
would not preempt Tribal laws. Therefore, the funding and consultation 
requirements of Executive Order 13175 do not apply, and a Tribal 
summary impact statement is not required.

L. Rulemaking Summary, 5 U.S.C. 553(b)(4)

    As required by 5 U.S.C. 553(b)(4), a summary of this rule can be 
found in the Abstract section of the Department's Unified Agenda entry 
for this rulemaking at: https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2130-AC96.

List of Subjects in 49 CFR Part 213

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

The Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend 
part 213 of chapter II, subtitle B of title 49, Code of Federal 
Regulations, as follows:

PART 213--TRACK SAFETY STANDARDS

0
1. The authority citation for part 213 continues to read as follows:

    Authority:  49 U.S.C. 20102-20114 and 20142; 28 U.S.C. 2461 
note; and 49 CFR 1.89.

Subpart F--Inspection

0
2. Add Sec.  213.236 to read as follows:


Sec.  213.236  Automated vehicle-based inspection systems.

    (a) A qualifying Track Geometry Measurement System (TGMS) shall be 
operated by all Class I railroads, Class II railroads, intercity 
passenger railroads, and commuter railroads on all mainline and 
controlled sidings for track Classes 1 through 5 on which any of the 
following occur: annual tonnage of greater than 10 MGT, regularly 
scheduled passenger service, or transportation of hazardous materials 
as defined in 49 CFR 171.8. A TGMS inspection shall be conducted at 
least three times within any 365-day period with not less than 90 days 
between inspections.
    (b) A qualifying TGMS shall meet or exceed minimum design 
requirements which specify that--
    (1) Track geometry measurements shall be taken no more than 3 feet 
away from the contact point of wheels carrying a vertical load of no 
less than 10 kips per wheel, unless otherwise approved by FRA;
    (2) Track geometry measurements shall be taken and recorded on a 
distance-based sampling interval preferably at 1 foot not exceeding 2 
feet; and
    (3) Calibration procedures and parameters assigned to the system 
ensure that measured and recorded values accurately represent track 
conditions. Track geometry measurements recorded by the system shall 
not differ more than 1/8 inch on repeated runs at the same site at the 
same speed.
    (c) A qualifying TGMS shall be capable of measuring and processing 
the necessary track geometry parameters to determine compliance with: 
Sec.  213.53, Track gage; Sec.  213.55, Track alinement; Sec.  213.57, 
Curves; elevation and speed limitations; and Sec.  213.63 Track 
surface; and, for operations at a qualified cant deficiency, 
E<INF>u</INF>, of more than 5 inches, Sec.  213.65, Combined track 
alinement and surface deviations.
    (d) A qualifying TGMS shall--
    (1) Transmit data in a manner that enables the track owner to take 
proper remedial action not later than one hour following identification 
of any exception to the class of track by the TGMS system;
    (2) Provide a continuous plot, on a constant-distance axis, of all 
measured track geometry parameters required in paragraph (c) of this 
section;
    (3) Provide a report containing a comprehensive listing of all 
track geometry exceptions detected by the TGMS vehicle. Any revision to 
this information and/or the raw data from the vehicle must be 
documented, signed, and certified by a Sec.  213.7(b) qualified 
employee in accordance with paragraph (f) of this section in a manner 
that correctly identifies the person who made the revision(s), and must 
show the original information along with the subsequent revision(s) and 
the basis or reason for the revision(s).
    (e) The reports required under paragraph (d) of this section shall 
contain sufficient location identification information to enable field 
forces to easily locate indicated exceptions.
    (f) Upon analysis of the TGMS data by a Sec.  213.7(b) qualified 
person, or within one hour of detection (i.e., the moment the TGMS 
passes over the defect) of an exception to the class of track by the 
TGMS system, whichever is sooner, the track owner must initiate proper 
remedial action. Analysis of the TGMS data may occur concurrently with 
the TGMS inspection. For any exception to the class of track observed 
from a crewed TGMS vehicle, the track owner shall immediately initiate 
proper remedial action.
    (g) The reports required under paragraph (d) of this section shall 
be interpreted and electronically signed or otherwise certified by a 
Sec.  213.7(b) qualified employee.
    (h) A visual inspection intended to satisfy the frequency 
requirement of Sec.  213.233(c) may not be conducted from a vehicle 
that is also conducting a TGMS inspection, unless there is a dedicated 
track inspector whose sole responsibility is conducting a visual 
inspection and all requirements of Sec.  213.233 are met.
    (i) In addition to any applicable training requirement of this part 
and 49 CFR part 243, the track owner shall ensure Sec.  213.7 qualified 
persons who review and/or interpret reports under this section are 
properly trained on, at a minimum, the following:
    (1) Interpreting TGMS data and reports;
    (2) Prioritizing and conducting site inspections to verify defects; 
and
    (3) Recordkeeping requirements.
0
3. Amend Sec.  213.241 by revising paragraphs (b) through (j), and 
adding paragraph (k) to read as follows:


Sec.  213.241  Inspection records.

* * * * *
    (b) Each record of an inspection under Sec. Sec.  213.4, 213.119, 
213.137, 213.233, 213.234, 213.235, and 213.239 shall be prepared on 
the day the inspection is made and signed or otherwise certified by the 
person making the inspection. Records shall specify the author of the 
record, the type of track inspected, date and location of inspection, 
location and nature of any deviation from the requirements of this 
part, and the remedial action taken by the person making the 
inspection. The track owner shall designate the location(s) where each 
original record shall be maintained for at least one year after the 
inspection covered by the record. The track owner shall also designate 
one location, within 100 miles of each State in which it conducts 
operations, where copies of records that apply to those operations are 
maintained or can be viewed following 10 days' notice by the Federal 
Railroad Administration.
    (c) The track owner required to conduct inspections under Sec.  
213.236 shall maintain for a period of two years following an 
inspection performed by a qualifying TGMS, a copy of the report 
required by Sec.  213.236(d), and additional records which:
    (1) Specify the date the inspection was made and the track segment 
involved; and

[[Page 84860]]

    (2) Specify the date of any follow-up inspection, the type of 
inspection, the location of each defect, the type and size of each 
defect, and the remedial action taken and the date thereof.
    (d) Records of internal rail inspections required by Sec.  213.237 
shall specify the--
    (1) Date of inspection;
    (2) Track inspected, including beginning and end points;
    (3) Location and type of defects found under Sec.  213.113;
    (4) Size of defects found under Sec.  213.113, if not removed prior 
to the next train movement;
    (5) Initial remedial action taken and the date thereof; and
    (6) Location of any track not tested pursuant to Sec.  213.237(g).
    (e) The track owner shall retain a rail inspection record under 
paragraph (d) of this section for at least two years after the 
inspection and for one year after initial remedial action is taken.
    (f) The track owner shall maintain records sufficient to 
demonstrate the means by which it computes the service failure rate on 
all track segments subject to the requirements of Sec.  213.237(a) for 
the purpose of determining compliance with the applicable service 
failure rate target.
    (g) Records of continuous rail testing under Sec.  213.240 shall--
    (1) Include all information required under Sec.  213.240(e);
    (2) State whether the test is being conducted to satisfy the 
requirements for an internal rail inspection under Sec.  213.237;
    (3) List the date(s) and time(s) of the continuous rail test data 
collection, including the date and time of the start and end of the 
test run, and the date and time each suspect location was identified 
and field-verified;
    (4) Include the determination made after field verification of each 
suspect location, including the:
    (i) Location and type of defect found;
    (ii) Size of defect; and
    (iii) Initial remedial action taken, if required, and the date 
thereof; and
    (5) Be retained for at least two years after the inspection and for 
at least one year after initial remedial action is taken, whichever is 
later.
    (h) Track owners that elect to utilize continuous rail testing 
under Sec.  213.240 shall maintain records of all continuous rail 
testing operations sufficient for monitoring and determining compliance 
with all applicable regulations and shall make those records available 
to FRA during regular business hours following reasonable notice.
    (i) Track inspection records shall be kept available to persons who 
performed the inspections and to persons performing subsequent 
inspections of the track segment. The most recent report from a TGMS 
inspection conducted under Sec.  213.236 shall be provided to persons 
performing subsequent inspections of the track segment.
    (j) Each track owner required to keep inspection records under this 
section shall make those records available for inspection and copying 
by FRA upon request during regular business hours following reasonable 
notice.
    (k) For purposes of complying with the requirements of this 
section, a track owner may create, retain, transmit, store, and 
retrieve records by electronic means provided that--
    (1) The system used to generate the electronic record meets all 
requirements and contains the information required under this subpart;
    (2) The track owner monitors its electronic records database to 
ensure record accuracy;
    (3) The track owner trains its employees who use the system on the 
proper use of the electronic recordkeeping management system;
    (4) The electronic system is designed to uniquely identify the 
author of the record. No two persons shall have the same electronic 
identity;
    (5) The track owner controls accessibility to such records and 
identifies individuals who have such access;
    (6) The electronic system ensures that each record cannot be 
modified in any way, or replaced, once the record is completed;
    (7) The electronic storage of each record shall be initiated by the 
person making the inspection within 72 hours following the completion 
of that inspection;
    (8) The track owner maintains an information technology security 
program adequate to ensure the integrity of the system, including the 
prevention of unauthorized access to the records; and
    (9) Any amendment to a record shall be electronically stored apart 
from the record which it amends. Each amendment to a record shall be 
uniquely identified as to the person making the amendment.

Subpart G--Train Operations at Track Classes 6 and Higher

0
4. Amend Sec.  213.333 by:
0
a. Removing paragraph (a)(1);
0
b. Redesignating paragraphs (a)(2) through (4) as paragraphs (a)(1) 
through (3);
0
c. Revising newly redesignated paragraph (a)(1), and paragraphs (b)(3), 
and paragraphs (c) through (g);
0
d. Redesignating paragraphs (h) through (m) as paragraphs (j) through 
(o); and
0
e. Adding new paragraphs (h) and (i).
    The revisions and additions read as follows:


Sec.  213.333  Automated vehicle-based inspection systems.

    (a) * * *
    (1) For track Class 6, at least three times within any 365-day 
period with not less than 90 days between inspections.
* * * * *
    (b) * * *
    (3) Calibration procedures and parameters are assigned to the 
system which assure that measured and recorded values accurately 
represent track conditions. Track geometry measurements recorded by the 
system shall not differ more than \1/8\ inch on repeated runs at the 
same site at the same speed.
    (c) A qualifying TGMS shall be capable of measuring and processing 
the necessary track geometry parameters to determine compliance with: 
Sec.  213.323, Track gage; Sec.  213.327, Track alinement; Sec.  
213.329, Curves; elevation and speed limitations; Sec.  213.331, Track 
surface; and for operations at a cant deficiency of more than 5 inches 
Sec.  213.332, Combined track alinement and surface deviations.
    (d) A qualifying TGMS shall--
    (1) Transmit data in a manner that enables the track owner to take 
proper remedial action not later than one hour following identification 
of any exception to the class of track by the TGMS system;
    (2) Provide a continuous plot, on a constant-distance axis, of all 
measured track geometry parameters required in paragraph (c) of this 
section; and
    (3) Provide a report containing a comprehensive listing of all 
track geometry exceptions detected by the TGMS vehicle. Any revision to 
this information and/or the raw data from the vehicle must be 
documented, signed, and certified by a Sec.  213.305(b) qualified 
employee in accordance with paragraph (f) of this section in a manner 
that correctly identifies the person who made the revisions, and must 
show the original information along with the subsequent revision(s) and 
the basis or reason for the revision.
    (e) The reports required under paragraph (d) of this section shall 
contain sufficient location identification information which enable 
field forces to easily locate indicated exceptions.
    (f) Upon analysis of the TGMS data by a Sec.  213.305(b) qualified 
person, or within one hour of detection (i.e., the

[[Page 84861]]

moment the TGMS passes over the defect) of an exception to the class of 
track by the TGMS system, whichever is sooner, the track owner must 
initiate proper remedial action. Analysis of the TGMS data may occur 
concurrently with the TGMS inspection. For any exception to the class 
of track observed from a crewed TGMS vehicle, the track owner shall 
immediately initiate proper remedial action.
    (g) The reports required under paragraph (d) of this section shall 
be interpreted and electronically signed or otherwise certified by a 
Sec.  213.305(b) qualified employee.
    (h) A visual inspection intended to satisfy the frequency 
requirement of Sec.  213.365(c) may not be conducted from a vehicle 
that is also conducting a TGMS inspection, unless there is a dedicated 
track inspector whose sole responsibility is conducting a visual 
inspection and all requirements of Sec.  213.365 are met.
    (i) In addition to any applicable training requirement of this part 
and part 243 of this chapter, the track owner shall ensure Sec.  
213.305 qualified persons who review and/or interpret reports under 
this section are properly trained on, at minimum, the following:
    (1) Interpreting TGMS data and reports;
    (2) Prioritizing and conducting site inspections to verify defects; 
and
    (3) Recordkeeping requirements.
0
5. Amend Sec.  213.369 by revising paragraphs (b) through (i), and 
adding paragraph (j) to read as follows:


Sec.  213.369  Inspection records.

* * * * *
    (b) Each record of an inspection under Sec. Sec.  213.365 and 
213.367 shall be prepared on the day the inspection is made and signed 
or otherwise certified by the person making the inspection. Records 
shall specify the author of record, the type of track inspected, date 
and location of inspection, location and nature of any deviation from 
the requirements of this part, and the remedial action taken by the 
person making the inspection. The track owner shall designate the 
location(s) where each original record shall be maintained for at least 
one year after the inspection covered by the record. The track owner 
shall also designate one location, within 100 miles of each State in 
which it conducts operations, where copies of records that apply to 
those operations are maintained or can be viewed following 10 days' 
notice by the Federal Railroad Administration.
    (c) The track owner required to conduct inspections under Sec.  
213.333 shall maintain for a period of two years following an 
inspection performed by a qualifying TGMS, a copy of the report 
required by Sec.  213.333(d), and additional records which:
    (1) Specify the date the inspection was made and the track segment 
involved; and
    (2) Specify the date of any follow-up inspections, the type of 
inspection, the location of each defect, the type and size of each 
defect, and the remedial action taken and the date thereof.
    (d) Rail inspection records shall specify the date of inspection, 
the location and nature of any internal defects found, the remedial 
action taken and the date thereof, and the location of any intervals of 
track not tested per Sec.  213.339(d). The owner shall retain a rail 
inspection record for at least two years after the inspection and for 
one year after remedial action is taken.
    (e) Records of continuous rail testing under Sec.  213.240 shall--
    (1) Include all information required under Sec.  213.240(e);
    (2) State whether the test is being conducted to satisfy the 
requirements for an internal rail inspection under Sec.  213.339;
    (3) List the date(s) and time(s) of the continuous rail test data 
collection, including the date and time of the start and end of the 
test run, and the date and time each suspect location was identified 
and field-verified;
    (4) Include the determination made after field verification of each 
suspect location, including the:
    (i) Location and type of defect found;
    (ii) Size of defect;
    (iii) Initial remedial action taken, if required, and the date 
thereof; and
    (5) Be retained for at least two years after the inspection and for 
at least one year after initial remedial action is taken, whichever is 
later.
    (f) Track owners that elect to utilize continuous rail testing 
under Sec.  213.240 shall maintain records of all continuous rail 
testing operations sufficient for monitoring and determining compliance 
with all applicable regulations and shall make those records available 
to FRA during regular business hours following reasonable notice.
    (g) Track inspection records shall be kept available to persons who 
perform the inspections and to persons performing subsequent 
inspections. The most recent report from a TGMS inspection conducted 
under Sec.  213.333 shall be provided to persons performing subsequent 
inspections of the track segment.
    (h) Each track owner required to keep inspection records under this 
section shall make those records available for inspection and copying 
by the Federal Railroad Administration upon request during regular 
business hours following reasonable notice.
    (i) For purposes of compliance with the requirements of this 
section, a track owner may create, retain, transmit, store, and 
retrieve records by electronic means provided that--
    (1) The system used to generate the electronic record meets all 
requirements and contains the information required under this subpart;
    (2) The track owner monitors its electronic records database to 
ensure record accuracy;
    (3) The track owner trains its employees who use the system on the 
proper use of the electronic recordkeeping management system;
    (4) The electronic system is designed to uniquely identify the 
author of the record. No two persons shall have the same electronic 
identity;
    (5) The track owner controls accessibility to such records and 
identifies individuals who have such access;
    (6) The electronic system ensures that each record cannot be 
modified in any way, or replaced, once the record is completed;
    (7) The electronic storage of each record shall be initiated by the 
person making the inspection within 72 hours following the completion 
of that inspection;
    (8) The track owner maintains an information technology security 
program adequate to ensure the integrity of the system, including the 
prevention of unauthorized access to the records; and
    (9) Any amendment to a record shall be electronically stored apart 
from the record which it amends. Each amendment to a record shall be 
uniquely identified as to the person making the amendment.
    (j) Each vehicle/track interaction safety record required under 
Sec.  213.333(g) and (m) shall be made available for inspection and 
copying by the FRA at the locations specified in paragraph (b) of this 
section.

    Issued in Washington, DC.
Amitabha Bose,
Administrator.
[FR Doc. 2024-24153 Filed 10-23-24; 8:45 am]
BILLING CODE 4910-06-P


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