2024-24153. Track Geometry Measurement System (TGMS) Inspections

Table ES-1—Summary of Total NPRM Costs Over the 10-Year Period

Impact	Undiscounted	Present value 7% ($)	Present value 3% ($)	Present value 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 7% ($)	Annualized 3% ($)	Annualized 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

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]

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.

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. ( print 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]

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.

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.

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 § 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 § 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 § 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 § 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 § 213.53, track gage; § 213.55, track alinement; § 213.57, curves, elevation, and speed limitations; and § 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 § 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 ( print 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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).

Section 213.241 Inspection Records

Currently, § 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 §§ 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 § 213.234(f) already ( print page 84850) lists recordkeeping requirements specific for these types of inspections, it is important that those records also comply with the requirements of § 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 § 213.239 records to comply with § 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 § 213.236. It would require that track owners maintain a copy of the report, required by proposed § 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 § 213.333 to make it consistent with the requirements of proposed § 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 § 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 § 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 § 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 § 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 § 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 ( print 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 § 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 § 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 § 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 § 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 § 213.369. Thus, FRA proposes moving its requirements, with some revisions, to proposed § 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 § 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 § 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 § 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 § 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 § 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 § 213.369, it is unclear what this statement originally referred to and the language appears to be unnecessary. FRA also proposes adding § 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 § 213.367 records comply with § 213.369(b). Further, FRA proposes slight revisions to the second sentence of paragraph (b) to make it mirror § 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. ( print 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 § 213.333(g), would list recordkeeping requirements for TGMS inspections performed under proposed § 213.333. It would require track owners to maintain a copy of the report, required by proposed § 213.333(d), for a period of two years following the TGMS inspection. Currently, § 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.

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.

However, proposed §§ 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 § 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 § 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 §§ 213.236(i) and 213.333(i) affects 10,000 railroad MOW employees (Group No 300).^[14] Each ( print 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.

Table 1—Ten Year Costs in 2023 Dollars

Impact	Undiscounted	Present value 7% ($)	Present value 3% ($)	Present value 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 7% ($)	Annualized 3% ($)	Annualized 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.

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]

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 ( print 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]

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:

CFR section	Respondent universe	Total annual responses	Average time per response	Total annual burden hours	Wage rate	Total cost equivalent in 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 compliance	784 railroads	15 notices	1 hour	15.00	89.13	1,336.95
—Notification of assignment to FRA
213.7(a)(b)—Designations: Names on list with written authorizations	784 railroads	2,500 names	10 minutes	416.67	89.13	37,137.80
213.17(a)—Waivers	784 railroads	10 petitions	2 hours	20.00	89.13	1,782.60
213.57(e)—Curves; elevation and speed limitations	784 railroads	4 requests	8 hours	32.00	89.13	2,852.16
—Request to FRA for vehicle type approval
—(f) Written notification to FRA prior to implementation of higher curving speeds	784 railroads	4 notifications	2 hours	8.00	89.13	713.04
( print page 84855)
—(g) Written consent of track owners obtained by railroad providing service over that track	784 railroads	4 written consents	45 minutes	3.00	89.13	267.39
213.110(a)—Gage restraint measurement systems (GRMS)	784 railroad	1 notification	45 minutes	0.75	89.13	66.85
—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 integrity	784 railroad	1 documented procedure	1 hour	1.00	89.13	89.13
—(n) GRMS inspection records	784 railroad	2 records	30 minutes	1.00	89.13	89.13
213.118(a)-(c)—Continuous welded rail (CWR)	438 railroads	10 plans	4 hours	40.00	89.13	3,565.20
—Revised plans w/procedures for CWR
—(d) Notification to FRA and RR employees of CWR plan effective date	438 railroads	750 notices	15 seconds	3.13	89.13	278.98
—(e) Written submissions after plan disapproval	438 railroads	5 written submissions	2 hours	10.00	89.13	891.30
—(e) Final FRA disapproval and plan amendment	438 railroads	5 amended plans	1 hour	5.00	89.13	445.65
213.234(e)—Automated inspection of track constructed with concrete crossties	30 railroads	125 reports	15 minutes	31.25	69.60	2,175.00
—Exception reports listing all exception to § 213.109(d)(4) Added requirement and burden hours from 2130-0592
—(f) Automated inspection of track constructed with concrete crossties	30 railroads	2,000 records	30 minutes	1,000.00	89.13	89,130.00
—Recordkeeping requirements
—(g) Procedure for integrity of data —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	30 railroads	30 revised procedures	2 hours	60.00	118.46	7,107.60
—(h)(3) Training Track owners to provide annual training in handling rail seat deterioration exceptions to all persons designated as fully qualified under § 213.7 and whose territories are subject to the requirements of § 213.234—Recordkeeping. Added requirement and burden hours from 2130-0592	30 railroads	2,250 records of trained employees	5 minutes	187.50	$69.60	13,050.00
* 213.236(d)(3)—Automated vehicle-based inspection systems. TGMS Track classes 1 through 5 report records (New proposed requirement)	64 railroads	7,500 report records	10 minutes	1,275	89.13	113,640.75
*—(i) training records (New proposed requirement)	9,500 employees	3,167 training records	5 minutes	250.96	89.13	22,368.06
213.237(b)(2)—Inspection of Rail	65 railroads	4 requests	15 minutes	1.00	89.13	89.13
( print 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 affected employees of designation's effective date after FRA's approval/conditional approval	65 railroads	1 notice to FRA + 15 bulletins	15 minutes	4.00	89.13	356.52
—(d) Notice to FRA that service failure rate target in paragraph (a) of this section is not achieved	65 railroads	4 notices	15 minutes	1.00	89.13	89.13
—(d)—Explanation to FRA as to why performance target was not achieved and provision to FRA of remedial action plan	65 railroads	4 letters of explanation/plans	15 minutes	1.00	89.13	89.13
213.238—Qualified operators	3 railroads + 5 testing entities	250 records	5 minutes	20.83	89.13	1,856.58
—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 or stop-and-verify)	12 railroads	25,000 documents/records	2 seconds	13.89	89.13	1,238.02
—Record
——(c)—Type of rail test (continuous or stop-and-verify)	12 railroads	100 documents	1 minute	1.67	89.13	148.85
—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 through 5. (Revised requirement)	784 railroads	1,400,000 records	10 minutes	238,000.00	89.13	21,212,940.00
213.303(b)—Responsibility for compliance	2 railroad	5 notices	30 minutes	2.50	89.13	222.83
—Notification of assignment to FRA
213.305(c)(4)—Designation of qualified individuals; general qualifications	2 railroads	20 written documents	30 minutes	10.00	89.13	891.30
—Written authorization for remedial actions
—(e) Railroads produced designation record upon FRA request	2 railroads	200 records	10 minutes	33.33	89.13	2,970.70
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 speed limitations—FRA approval of qualified vehicle types based on results of testing	2 railroads	2.00 cover letters + 2.00 technical reports + 2.00 diagrams	30.00 minutes + 16.00 hours + 15.00 minutes	33.50	89.13	2,985.86
—(f) Written notification to FRA 30 days prior to implementation of higher curving speeds	2 railroads	2 notices	2 hours	4.00	89.13	356.52
—(g) Written consent of other affected track owners by railroad	2 railroads	2 written consents	45 minutes	1.50	89.13	133.70
* 213.333(d)—Automated vehicle-based inspection systems. TGMS track classes 6-9 report records. (Revised requirement)	5 railroads	150 reports	10 minutes	25.50	89.13	2,272.82
*—(i) training records (New proposed requirement)	500 employees	167 training records	5 mins	13.36	89.13	1,190.78
( print page 84857)
213.341(b)-(d)—Initial inspection of new rail & welds	2 railroads	800 records	2 minutes	26.67	89.13	2,377.10
—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 testing	2 railroads	2 program plans	120 hours	240.00	89.13	21,391.20
—Vehicle qualification program for all vehicle types operating at track Class 6 speeds or above.
—(d) Previously qualified vehicle types of qualification programs	2 railroads	2 program plans	8 hours	16.00	89.13	1,426.08
—(h) Written consent of other affected track owners by railroad	2 railroads	4 written consents	30 minutes	2.00	118.46	236.92
213.369—Visual track inspection records (Revised requirement)	5 railroads	15,273 records	10 minutes	2,596.41	89.13	231,418.02
Total 24	784 railroads	1,468,401 responses	N/A	244,781		21,814,944