# Texas Central Railroad High-Speed Rail Safety Standards > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2020-20388 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** November 3, 2020 - **Citation:** 85 FR 69700 ## Text DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 299 [Docket No. FRA-2019-0068, Notice 5] RIN 2130-AC84 Texas Central Railroad High-Speed Rail Safety Standards AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Final rule; rule of particular applicability and record of decision. SUMMARY: This final rule of particular applicability (RPA) establishes safety standards for the Texas Central Railroad (TCRR or the railroad) high-speed rail (HSR) system. These standards are not intended for general application in the railroad industry, but apply only to the TCRR system planned for development in the State of Texas. This rule takes a systems approach to safety, and so includes standards that address the aspects of the TCRR HSR system consistent with the regulatory framework for the general system, but in a manner appropriate to TCRR's technology and application, including signal and trainset control, track, rolling stock, operating practices, system qualifications, and maintenance. The TCRR HSR system is planned to operate from Houston to Dallas, on dedicated track, with no grade crossings, at speeds not to exceed 330 km/h (205 mph). The TCRR rolling stock, track, and core systems will replicate the Tokaido Shinkansen HSR system operated by the Central Japan Railway Company (JRC), and will be used exclusively for revenue passenger service. DATES: Effective date. This final rule is effective December 3, 2020. Incorporation by reference. The incorporation by reference of the standards listed in the rule is approved by the Director of the Federal Register as of December 3, 2020. ADDRESSES: Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov at any time. FOR FURTHER INFORMATION CONTACT: For issues related to the technical safety requirements: Frederick Mottley, Systems Engineer, at (617) 494-3160; Devin Rouse, Mechanical Engineer, at (202) 493-6185; or Michael Hunter, Attorney Adviser, at (202) 493-0368. For issues related to the Record of Decision: Kevin Wright, Environmental Protection Specialist at (202) 493-0845; or Kathryn Johnson, Attorney Adviser, at (202) 493-0407. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary II. Statutory Authority III. Proceedings to Date IV. Discussion of Comments Received on the NPRM A. Context and Overview B. Regulatory Approach C. General Safety Oversight D. Interference With the Union Pacific Railroad E. Track Safety F. Crashworthiness and Occupant Protection G. Reissuance of NPRM H. Electrical Arcing From the Overhead Catenary System I. Right-of-Way Barrier Protection J. Emergency Response K. Noise Emission and Vibration L. Eminent Domain M. Regulatory Evaluation N. Enforcement V. Discussion of Final Rule and Regulatory Changes A. Non-Substantive Corrections B. Evaluation of Substantive Changes 1. § 299.5 Definitions 2. Subpart B—Signal and Trainset Control System 3. § 299.345 Visual Inspections; Right-of-Way 4. § 299.347 Special Inspections 5. § 299.713 Program Approval Procedures C. Trainset Image Recording System D. Decision Under 49 U.S.C. 20306, Exemption for Technological Improvements E. Incorporation by Reference VI. FRA's Record of Decision A. Summary of Alternatives Considered 1. No Build Alternative 2. Build Alternatives B. Environmentally Preferable Alternative 1. Environmentally Preferable Build Alternative 2. Environmentally Preferable Houston Station Option C. Mitigation Commitments VII. Regulatory Impact and Notices A. Executive Orders 12866 and 13771, and DOT Regulatory Policies and Procedures B. Regulatory Flexibility Act and Executive Order 13272; Regulatory Flexibility Assessment C. Paperwork Reduction Act D. Federalism Implications E. International Trade Impact Assessment F. National Environmental Policy Act G. Executive Order 12898 (Environmental Justice) H. Clean Air Act/Air Quality General Conformity I. Section 106 of the National Historic Preservation Act J. Department of Transportation Act Section 4(f) Determination K. Endangered Species Act/Section 7 U.S. Fish and Wildlife Service Biological Opinion L. Executive Order 11990 Preservation of the Nation's Wetlands (Executive Order 11990 & DOT Order 5660.1a) M. Floodplain Management (Executive Order 11988 & DOT Order 5650.2) N. Executive Order 13175 (Tribal Consultation) O. Unfunded Mandates Reform Act of 1995 P. Energy Impact I. Executive Summary On August 30, 2019, FRA granted TCRR's rulemaking petition (petition), which was submitted April 16, 2016. 1 The petition proposed comprehensive safety requirements for the application of JRC's Tokaido Shinkansen technology, and its associated design and engineering principals. TCRR's petition represented that the regulatory requirements offered by TCRR translate the technological and operational aspects of the JRC Tokaido Shinkansen system in a manner that can be regulated under a framework similar to other US passenger rail operations while maintaining the integrity of the safety case developed by JRC over 50 years of experience operating high-speed trains. 1 TCRR supplemented its petition in August 2016, and submitted an updated petition in September 2017. The Tokaido Shinkansen system first went into service on October 1, 1964, under the operation of the Japanese National Railways (JNR). On April 1, 1987, JNR was privatized and split into six passenger railroads and a freight railroad. JRC took over operations of the Tokaido Shinkansen system in Central Japan, and is still operating the system today. In over 50 years of Tokaido Shinkansen system operations, JNR, and now JRC, have optimized operations to a very high level of safety and performance. The Tokaido Shinkansen system has moved over 6 billion passengers without a passenger fatality or injury due to trainset accidents such as a derailment or collision. TCRR intends to implement a high-speed passenger rail system by using the Tokaido Shinkansen system's service-proven technology and by replicating JRC's operational and maintenance practices and procedures. TCRR plans to implement the latest, service-proven derivative of the N700 trainset and other core systems currently in use on the Tokaido Shinkansen line, 2 which have been refined for high-speed operations over the last 50+ years. TCRR plans to adapt the N700 series trainset and supporting systems in a manner suitable for the Texas environment and operate under a regulatory framework that enables FRA to provide effective safety oversight. 2 Subsequent references to “N700” or “N700 series trainset” are meant to refer to the N700 series trainset currently in, or future variants approved for, use. FRA has evaluated the economic burden that the final rule would have on TCRR. Discussion of this can be found under section VII. A. Executive Orders 12866 and 13771, and DOT Regulatory Policies and Procedures. FRA concluded that because this final rule generally includes only voluntary actions, or alternative action that would be voluntary, the final rule does not impart additional burdens on TCRR. Further, this document also contains FRA's Record of Decision with respect to the environmental review conducted pursuant to the National Environmental Policy Act (NEPA), as discussed in section VI. FRA's Record of Decision. Except for the changes discussed under sections V. A. Non-substantive Corrections and V. B. Evaluation of Substantive Changes, FRA is adopting the rule text of the NPRM otherwise unchanged in this final rule. II. Statutory Authority Under the Federal railroad safety laws, FRA has jurisdiction over all railroads, as defined in 49 U.S.C. 20102, except urban rapid transit operations that are not connected to the general railroad system of transportation (general system). Moreover, FRA considers a standalone intercity railroad line to be part of the general system, even if it is not physically connected to other railroads (as FRA has previously stated with respect to the Alaska Railroad; 49 CFR part 209, appendix A). FRA considers the contemplated TCRR system as intercity passenger rail, not urban rapid transit. Accordingly, the TCRR system will be subject to FRA jurisdiction, whether it connects to the general system or not. Please see FRA's policy statement, contained at 49 CFR part 209, appendix A, discussing in greater detail FRA's jurisdiction over passenger railroads, which includes discussion on how FRA characterizes passenger operations. FRA has a regulatory program in place, pursuant to its statutory authority, to address equipment, track, operating practices, and human factors in the existing, conventional railroad environment. However, significant operational and equipment differences exist between TCRR's system and existing passenger operations in the United States. In many of the railroad safety disciplines, FRA's existing regulations do not address the safety concerns and operational peculiarities of the TCRR system. Therefore, to allow TCRR to operate as envisioned, an alternative regulatory approach is required to provide safety oversight. III. Proceedings to Date On March 10, 2020, FRA published a notice of proposed rulemaking (NPRM). 3 The NPRM proposed safety standards to enable safe operations and an alternate method for Federal safety oversight. The NPRM also opened the public comment period, which was initially scheduled to close on May 11, 2020. 3 85 FR 14036. On March 12, 2020, FRA announced that it was holding three public hearings on the NPRM, and was conducting proceedings under 49 U.S.C. 20306. 4 Those hearings were to be held in Dallas, Navasota, and Houston, Texas, between March 31 and April 2, 2020. However, in light of the President's March 13, 2020, national emergency declaration, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) public health emergency, and the Centers for Disease Control and Prevention (CDC) guidance to cancel mass gatherings of people, 5 FRA postponed the three public hearings on March 30, 2020. 6 4 85 FR 14449. 5 See https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/mass-gatheringsready-for-covid-19.html. 6 85 FR 17527. On April 16, 2020, FRA announced, consistent with CDC guidance advising against in-person gatherings, that it decided to convene the three public hearings, and to conduct proceedings under 49 U.S.C. 20306, telephonically between May 4th through 6th, 2020. 7 The choice to conduct these hearings telephonically represented merely a change in the manner of public engagement. Also, in the same announcement, FRA extended the comment period to May 26, 2020, so that members of the public would have adequate time to review and provide written comments on the transcripts of the three public hearings conducted. Further, FRA addressed the numerous requests it received to not hold “virtual hearings,” due to concerns over the lack of reliable high-speed internet access, and/or to postpone hearings until they can be safely held in-person. 7 85 FR 21159. In response to public comments, FRA explained that it decided to hold telephonic hearings, capable of accommodating the same number of participants as previously scheduled in-person hearings, as it was consistent with ensuring public health and that no technology beyond a telephone was necessary for participation. Moreover, FRA explained that there was no need to further postpone the public hearings or further extend the comment period given the extensive public outreach already conducted related to this proposed rule, and the supplementary nature of the public hearings as related to the opportunity to provide detailed written comments on the proposed rule. FRA conducted the three telephonic public hearings, and proceedings under 49 U.S.C. 20306, as scheduled and the comment period closed on May 26, 2020. FRA is aware of concerns that the publication of the final environmental impact statement (EIS) effectively cut off the comment period for the NPRM on May 15, 2020. Those concerns are unfounded. The Final EIS stated that— As of the execution of this Final EIS on May 15, 2020, oral comments made during the public hearings and written comments submitted to the Docket have raised no new substantive issues relevant to environmental concerns from those received during the public comment period of the Draft EIS (discussed in Section 9.6.2, Public and Agency Involvement, Draft EIS Comment Period, and Appendix H, Response to Draft EIS Comments) or on topics not already covered within this Final EIS. FRA will continue to evaluate comments received during the comment period for the Proposed Rulemaking. FRA will address comments on technical safety requirements proposed in the NPRM in the Final Rule, which will be published in the Federal Register . 8 8 See Docket FRA-2019-0068, Final Environmental Impact Statement at ES-5. It is clear from the text of the Final EIS that FRA did not close the rulemaking comment period on May 15, 2020. Rather, FRA informed the public that FRA was not able to consider in the Final EIS comments submitted on the NPRM that were received by FRA after May 15, 2020. This was necessary to allow for printing and distribution of the Final EIS. However, the text of the Final EIS clarified that FRA continued to consider comments submitted during the rulemaking comment period. IV. Discussion of Comments Received on the NPRM 9 9 Comments submitted regarding the Final EIS are addressed below, under section VII. F. National Environmental Policy Act. During the 77-day comment period, FRA received 287 written submissions providing comments on the NPRM and had fifty-two individuals provide testimony during the three days of public hearings. As discussed below, not all comments necessitated a response in this final rule, but all comments were carefully and thoroughly considered. Although FRA's responses to comments, discussed below, generally address issues raised in comments critical of the rulemaking or TCRR, or both, FRA also received comments supportive of the rulemaking or TCRR, or both. Commenters providing support ranged from members of the public, to various railroad or railroad-related associations, to State and Federal elected officials. As these supportive commenters did not raise any substantive issues regarding the technical safety requirements proposed in the NPRM, FRA has not provided a response to those comments in this final rule. FRA also received comments requesting that FRA either extend the comment period or otherwise postpone the issuance of this final rule, or objecting to the telephonic hearing format or the notice provided for the public hearings. These comments are addressed above, in section III. Proceedings to Date. FRA did not provide responses in this final rule to comments that were considered either outside the scope of the rulemaking, or that raised issues that were previously raised to FRA as part of the environmental review process, which FRA addressed and responded to in the Final EIS released on May 29, 2020, available for review on FRA's website for the environmental review of the proposed Dallas to Houston High-Speed Rail. 10 10 FRA. Dallas to Houston High-Speed Rail—Passenger Service from Houston to Dallas https://railroads.dot.gov/environmental-reviews/dallas-houston-high-speed-rail/dallas-houston-high-speed-rail-passenger, Final Environmental Impact Statement . FRA's responses below address the remaining comments received. These comments were either critical of the rulemaking or raised issues necessitating further explanation or clarification. As multiple commenters raised similar issues, FRA organized its responses so that like-issues are grouped together. A. Context and Overview FRA received comments regarding the timing of the rulemaking in relation to the timing of the EIS. Commenters expressed confusion over how the rulemaking and NEPA processes, and the final rule and the EIS relate to each other. Commenters were concerned about FRA granting a “safety permit” without conducting surveys of the entire right-of-way (ROW), or other types of analyses (such as a hazard analysis). In addition, commenters raised concerns about the timing of coordination with other Federal agencies that may need to occur before or during construction. As discussed in the NPRM, TCRR approached FRA in March of 2014, seeking assistance in understanding how FRA would or could apply its regulations to a high-speed passenger railroad system that replicated the Tokaido Shinkansen HSR system, as operated by JRC. 11 On June 25, 2014, FRA published a Notice of Intent to prepare an Environmental Impact Statement in the Federal Register . 12 On December 22, 2017, FRA published its Draft EIS and opened its comment period. 13 FRA stated in the Draft EIS that FRA's regulations at the time did not address safety requirements comprehensively for passenger train operations above 150 mph, such as TCRR's contemplated operation. As such, FRA would need to take some form of regulatory action to ensure the contemplated system would be operated safely, such as issuing an RPA, imposing requirements or conditions by order(s) or waiver(s), or taking some other form of regulatory action. 14 This regulatory action constitutes a Major Federal Action requiring review under NEPA. 15 11 85 FR 14036, 14038. 12 79 FR 36123. 13 82 FR 60723 and FRA. Dallas to Houston High-Speed Rail—Passenger Service from Houston to Dallas https://railroads.dot.gov/environmental-reviews/dallas-houston-high-speed-rail/dallas-houston-high-speed-rail-passenger, Draft Environmental Impact Statement. 14 While this statement was accurate at the time of publication of the Draft EIS in December 2017, it was incomplete. The Final EIS clarified that it was not just the proposed speed of the TCRR's passenger operations that require FRA regulatory action. As described in the Final EIS, FRA's existing regulations do not adequately address the safety concerns and operational characteristics of TCRR's proposed HSR system. FRA. Dallas to Houston High-Speed Rail—Passenger Service from Houston to Dallas https://railroads.dot.gov/environmental-reviews/dallas-houston-high-speed-rail/dallas-houston-high-speed-rail-passenger, Final Environmental Impact Statement, Chapter 1.0, Introduction. Subsequent to the publication of the Draft EIS, in November 2018, FRA published a final rule establishing safety standards for passenger operations up to 220 miles per hour. 15 FRA. Dallas to Houston High-Speed Rail—Passenger Service from Houston to Dallas https://railroads.dot.gov/environmental-reviews/dallas-houston-high-speed-rail/dallas-houston-high-speed-rail-passenger, Final Environmental Impact Statement, Abstract. The purpose of the NEPA process is to inform the decisionmaker and the public of the potential environmental impacts that may result from the proposed action. As such, the EIS must be finalized before the agency takes the action that is the subject of the environmental review. The Final EIS itself, while a meaningful milestone in the NEPA process, does not permit construction or operations. Rather, the EIS enables FRA to reach a decision that is informed by an understanding of the potential environmental impacts of this rulemaking. The analysis of potential environmental impacts in the EIS is based on TCRR's conceptual engineering design, which is contained in conceptual engineering reports prepared by TCRR and appended to the Draft and Final EIS. While the conceptual engineering design has been appropriately used to inform the NEPA process, TCRR must complete more thorough engineering and design work to facilitate construction. TCRR will need to consider the agreed upon mitigation and compliance measures 16 and the requirements of this rule as it advances the engineering design. In addition, TCRR must follow all applicable Federal, State, and local requirements, which are separate from FRA's jurisdiction. This includes the Surface Transportation Board (STB), which issued a decision on July 16, 2020, finding that the operation proposed by TCRR is subject to STB jurisdiction. 17 16 FRA. Dallas to Houston High-Speed Rail—Passenger Service from Houston to Dallas https://railroads.dot.gov/environmental-reviews/dallas-houston-high-speed-rail/dallas-houston-high-speed-rail-passenger, Record of Decision Attachments, Mitigation Commitments. 17 Surface Transportation Board Decision, Texas Central Railroad and Infrastructure, Inc. & Texas Central Railroad, LLC-Petition for Exemption-Passenger Rail Line Between Dallas and Houston, Tex., July 16, 2020, Docket No. FD 36025. STB also found that TCRR must file an application under 49 U.S.C. 10901 and 49 CFR part 1150 to seek STB authority to construct and operate its proposed system. FRA does not grant any kind of construction approval or permit. Neither does this final rule, by itself, grant any permission or authority for TCRR to operate. Furthermore, this rulemaking does not relieve TCRR of its responsibilities to design, construct and operate a safe railroad. It merely provides alternatives to certain requirements and safety standards, which are more appropriate for the technology and system proposed by TCRR. TCRR must design, operate and maintain its system in compliance with this regulation. What this final rule does is establish the minimum Federal safety requirements with which TCRR must comply. The publication of this final rule is the beginning for TCRR, not the end, of its continuous obligation to demonstrate compliance with the regulation. FRA will continue to provide safety oversight throughout TCRR's development and testing phases, in addition to during revenue operations. In this manner, the expectations for compliance are no different for TCRR than any other railroad under FRA jurisdiction. Prior to commencing actual revenue operations, TCRR will need to demonstrate that all the safety critical components system work together as a single, integrated system, pursuant to subpart F of this rule. 18 This involves a number of points of compliance that TCRR will work through over the coming years. 18 See the discussion of System Qualification in the NPRM at 85 FR 14036, 14044. To underscore this point, there are several significant requirements that TCRR must meet. For example, TCRR must demonstrate that the trainset meets the requisite crashworthiness and occupant protection requirements as established under subpart D. 19 Also, TCRR must have its positive train control (PTC) system certified in accordance with 49 U.S.C. 20157 and subpart B of this final rule. 20 Further, TCRR must train and qualify its employees performing safety sensitive functions before those employees engage in their respective work ( i.e., drivers will need to be certified under 49 CFR part 240, maintenance employees will need to be qualified in accordance with TCRR's training program established under 49 CFR part 243, etc. ). 21 Moreover, not only initially, but continuously thereafter, TCRR must demonstrate that its track meets the track safety standards outlined in subpart C. In addition, not only must TCRR comply with the technical safety requirements established in this final rule, it also must comply with the other regulations identified under § 299.3(c), such as part 214, Railroad Workplace Safety; part 219, Control of Alcohol and Drug Use; part 228, Hours of Service of Railroad Employees; and part 270, System Safety Program. 19 See the discussion of crashworthiness and occupant protection under Trainset Structure of the NPRM at 85 FR 14036, 14039, and under section IV. F. Crashworthiness and Occupant Protection of this final rule. 20 Please also see the discussion of Automatic Train Control System in the NPRM. 85 FR 14036, 14041. 21 Please also see section IV. C. 8. Personnel Qualification in the NPRM at 85 FR 14036, 14045, and section IV. G. Reissuance of NPRM of this final rule. FRA notes that there were questions and concerns raised with respect to the lack of interoperability of the system. However, lack of interoperability is not, per se, a bar to operation in the U.S. It is true that FRA stated in 2016 that it did not envision a network of standalone, non-interoperable HSR systems comprising the nationwide network, but this perspective was built largely on historical precedence and should not be interpreted as a prohibition in any way. And in 2018, FRA stated that standalone systems should continue to be regulated comprehensively (such as through a rule of particular applicability or other specific regulatory action(s)), and on a case-by-case basis, as it is prudent due to the small number of potential operations and the potential for significant differences in their design. 22 Since then, FRA has not seen a proliferation of non-interoperable systems in the U.S. In fact, FRA has seen more potential conventional (steel-wheel-on-steel-rail) operations avail themselves of the Tier III requirements rather than pursuing the more arduous and costly route of being a standalone system. For example, Amtrak's next-generation Acela is in the process of demonstrating that its new trainsets comply with the Tier III requirements. XpressWest, is attempting to conduct Tier III operations between Victorville, CA and Las Vegas, NV (the XpressWest bullet train). And while FRA generally considers matters in the context of the established interoperable general railroad system, FRA's mission is to enable safe, reliable, and efficient movement of people and goods by rail, regardless of the technology used. 22 83 FR 59182, 59186. B. Regulatory Approach Several commenters asked why FRA elected to pursue a rule of particular applicability for TCRR. Initially, FRA notes that taking action to provide a regulatory framework to govern the operation of the system proposed by TCRR is consistent with FRA's mission is to enable safe, reliable, and efficient movement of people and goods by rail. Further, as FRA stated when granting the petition to undertake the rulemaking, TCRR's petition demonstrated that TCRR's system would replicate the system and operations of the Tokaido Shinkansen, as operated by JRC, allowing TCRR to take advantage of that system's exemplary 50-year safety record. (Docket FRA-2019-0068, FRA Letter Granting Petition). As discussed under section III. Regulatory Approach of the NPRM, FRA explained that it was taking this approach as it was consistent with its statement in the Passenger Equipment Safety Standards final rule, published November 21, 2018. 23 FRA considers TCRR a standalone system, as its tracks are not physically connected to the rest of the general system, and would be prohibited from doing so by this regulation. FRA stated in 2018 that a standalone system's regulation would have to bring together all aspects of railroad safety (such as operating practices, signal and trainset control, and track) that must be applied to the individual system. 24 Such an approach covers more than passenger equipment, and would likely necessitate particular ROW intrusion protection and other safety requirements not typically addressed in FRA's more general regulations. With this regulation, FRA continues to believe that addressing proposals for standalone HSR systems in this manner is prudent. Entities considering standalone operations voluntarily assume the higher costs of building new and dedicated infrastructure, knowing they cannot take advantage of the cost savings from sharing existing infrastructure. 23 85 FR 14036, 14037; 83 FR 59182. 24 83 FR 59182, 59186. Alternatively, FRA could have issued a comprehensive set of waivers from FRA's existing regulations, to the extent permitted by law, under 49 U.S.C. 20103(b), in order to provide regulatory approval to the operation. However, in this case, electing to develop and publish a comprehensive regulation is more efficient. Such a regulation, in addition to providing regulatory approval, institutes a comprehensive regulatory framework, that provides TCRR clarity on the minimum Federal safety standards that it must comply with through technology-specific, 25 performance-based requirements. In addition, it provides the railroad a higher degree of regulatory certainty than waivers, as waivers are revocable, subject to changing conditions, and necessitate renewal, generally every five years. Further, by issuing an RPA, FRA is able to protect the integrity of the system, by establishing regulatory requirements codifying the service-proven technological, operational, and maintenance aspects of the Tokaido Shinkansen HSR system operated by JRC. 25 Note, FRA typically tries to craft regulations so that they are technology-neutral and performance-based. Because TCRR's safety case is derived from the use of JRC's technology, and operational and maintenance practices, this regulation was written specifically for that technology to maintain the integrity of the baseline safety case. C. General Safety Oversight FRA received a number of comments, both written oral, concerning a lack of adequate safety oversight for TCRR. The commenters expressed general concerns regarding the safe construction of the system, and more specific concerns with construction of the system where it intersects various pipelines. In addition, commenters expressed concerns that no one agency would be responsible for the overall safety of the system and for the perceived lack of coordination between three specific Federal agencies: FRA, the Pipeline and Hazardous Materials Safety Administration (PHMSA), and the Federal Energy Regulatory Commission (FERC). As these comments are closely related, FRA will address them together. DOT does not have plenary authority to regulate every aspect of transportation and is limited to the authority granted to it by Congress. Accordingly, the same is true for each of DOT's operating administrations—the regulatory authority for each one is limited at the Federal level by the scope of authority granted by Congress. As discussed above in section II. Statutory Authority, FRA's authority to regulate the railroad industry is established in 49 U.S.C. ch. 201. FRA has jurisdiction over all railroads, as defined in 49 U.S.C. 20102, except urban rapid transit operations that are not connected to the general railroad system of transportation. Notably, FRA has broad authority to regulate every area of railroad safety. 49 U.S.C. 20103. But, there must be a nexus to railroad safety for FRA to regulate. However, FRA does not exercise jurisdiction under all of its regulations to the full extent permitted by statute. Based on its knowledge of where the safety problems were occurring at the time of its regulatory action, and its assessment of the practical limitations on its role, FRA decided to regulate something less than the total universe of railroads. 26 26 49 CFR part 209, Appendix A. While FRA's jurisdiction is broad, it is not unlimited, and there are some areas where FRA defers to another entity. In practice, FRA exercises its authority through regulations on matters where safety is most effectively addressed at the Federal level, and is necessary to ensure unimpeded interstate commerce, or explicitly required by statute. Some elements of safety are more effectively addressed by other levels of government ( i.e., State or local), or by industry itself through the development and maintenance of industry standards and recommended practices. For example, the civil construction of a railroad and its structures are more effectively addressed by State and local requirements that take into account the geotechnical, seismic, and hydrological conditions associated with a local environment. While FRA could assert its safety authority over the design and construction of a railroad bridge, for example, these specific requirements are more effectively addressed and monitored at the State and local level. Similarly, in railroad repair shop environments, where railroads perform maintenance on their equipment, the Occupational Safety and Health Administration provides Federal safety oversight of the work conditions within the shop environment, even though it is a railroad facility and railroad employees are involved. With that said, FRA clarifies that there is no one agency that is responsible for every aspect of safety as it relates to TCRR. To ensure proper safety of the system, each Federal, State, and local authority must perform its part. FRA will certainly oversee railroad safety where conditions might impact the safe operation of the system, but other agencies will also play a role. Where there are intersections among agencies, appropriate coordination must occur to ensure that the proper agency or entity is enforcing the correct requirements (whether Federal, State, or local), at the appropriate time. In the same spirit, where non-governmental organizations have a potential nexus of safety considerations ( e.g., TCRR operations adjacent to Union Pacific Railroad (UPRR) operations), it is expected that those organizations coordinate appropriately with each other in good faith. In turning to the specific issues raised about safety oversight of the construction of the system, and the safety of the TCRR system in relation to pipelines in the vicinity, FRA clarifies that where a condition impacts the safe operation of the railroad, FRA could intervene to ensure the condition is properly remediated. Although FRA has not exercised its jurisdiction in this area (civil construction), FRA would not be precluded from doing so, should the need arise, to ensure railroad safety. The particular facts of a situation would dictate the appropriate authority to handle the issue. Generally, TCRR is obligated to comply with PHMSA's safety requirements, including those related to pipeline damage, electrical emissions, and cathodic protection, where there are pipeline crossings. FERC has no jurisdiction or decision-making authority over the construction or operation of TCRR's system. FERC-regulated pipelines occur in the vicinity of the alignment, and relocation and/or maintenance activities of these utilities during the construction of the system may require FERC involvement by the applicable utility providers. PHMSA and FERC requirements are discussed in more detail in Section 3.9.2, Utilities and Energy, Regulatory Context of the Final EIS. 27 27 FRA. Dallas to Houston High-Speed Rail—Passenger Service from Houston to Dallas https://railroads.dot.gov/environmental-reviews/dallas-houston-high-speed-rail/dallas-houston-high-speed-rail-passenger, Final Environmental Impact Statement. All natural gas utility providers, including Atmos Energy, are required to operate in accordance with operational safety regulations, including regulations promulgated by PHMSA, and would have to consider how external factors might impact their operational safety as the parties communicate and coordinate during planning and development. Id. It is not necessary for FRA to coordinate with PHMSA or FERC in order to develop the minimum Federal railroad safety requirements contained in this final rule. As discussed above, FERC has no involvement during the development of minimum Federal safety standards for the operation of the TCRR system. As TCRR advances from the conceptual engineering that was the basis for the environmental analysis in the Final EIS to design engineering, more detailed information will become available about pipelines that may need to be relocated, which would be subject to FERC jurisdiction. In addition, TCRR is already required to comply with PHMSA requirements regarding pipeline safety applicable to utility crossings, relocations, and/or maintenance activities involving natural gas or hazardous liquid transportation pipelines impacted by TCRR's system. FRA is unaware of any need to amend PHMSA's requirements in light of the contemplated TCRR system. Although no coordination was necessary, FRA has nonetheless coordinated with both FERC and PHMSA after receiving the public comments regarding pipeline safety and in response to the expressed lack of coordination. Both the EIS and the development of the safety standards in this final rule represent only the beginning of coordination on these issues common to any linear construction project, and FRA would expect TCRR to continue and, as necessary expand, this coordination and engagement as TCRR moves forward. D. Interference With the Union Pacific Railroad A number of comments received were focused on the potential impacts to conventional track circuits and signaling technology caused by TCRR's electrified railroad. UPRR submitted comments expressing these concerns to both the Draft EIS and the NPRM. 28 28 See Section 3.15, Electromagnetic Fields of the Final EIS for a discussion of the potential impacts associated with the generation of electromagnetic fields. FRA notes that the matter of potential interference to conventional track circuits and signaling technology, whether from traction power systems, 29 or other known sources, is a matter that is not unique to the contemplated TCRR operation. The effects and potential interference that can be caused by rail vehicle traction power systems are well-established, and require design-specific and local environmental information to assess. To date, FRA has not promulgated specific regulations addressing the use of traction power systems on railroads holistically, as the matter has been effectively handled by industry standards, local or utility requirements (if applicable), and contractual responsibilities. In this final rule FRA does not deviate from this practice and therefore is not regulating TCRR's traction power system. 29 A tractive power system is a system that provides a means to produce tractive effort to a trainset or motive power unit, i.e., the propulsion system. Most traction power systems utilize the transmission of direct current (DC) or alternating current (AC) electricity by means of an overhead wire or powered third rail to convert electrical energy to tractive effort (the force that accelerates a vehicle along a track). Electrified railroads and transit systems operate over and adjacent to rail lines using conventional track circuitry and signaling technology throughout the U.S., including FRA-regulated operations on the Northeast Corridor, and in Pennsylvania, Chicago, northern Indiana, Denver, and San Francisco (specifically the electrification of Caltrain's commuter rail service, currently in progress). Furthermore, numerous light-rail and transit operations utilize traction power systems that operate adjacent to, or in some cases directly on, FRA-regulated properties utilizing conventional signaling technology ( e.g., Utah Transit Authority's mid-Jordan extension). FRA points to numerous examples that UPRR itself, operates over or adjacent to 25kVA electrified track, including most notably Denver's A-line, which operates on electrified track directly adjacent to UPRR utilizing the same PTC technology. Several commenters, including UPRR, provided broad language concerning the need to address potential electromagnetic interference (EMI), but provided no specific justification as to why current industry practice, or the requirements proposed within the NPRM were insufficient. FRA believes the high-level language used by the commenters to describe the hazard, unaccompanied by any supporting technical data, underscores a lack of understanding of the subject matter. Although commenters did not specify the mechanism by which traction power systems may introduce risk, they may be concerned with the potential for voltages to be induced into parallel conductors ( i.e., UPRR's track) which, in turn, could interfere with rudimentary circuit designs and technology being employed by UPRR for track circuit occupancy and grade crossing activation circuits. Commenter references to interference with UPRR's PTC system may likewise relate to the potential for induced voltage that could lead to a track circuit appearing to be unoccupied even though a train may actually be shunting the circuit. This typically occurs with more primitive DC and AC technologies, if not designed to account for such conditions, as those types of primitive technologies cannot decipher the induced voltage from the circuit's own power source. FRA notes that while this is certainly a hazard that must be addressed, such site-specific issues can only be addressed as TCRR proceeds from conceptual to detailed design phases. It is FRA's expectation that TCRR and any affected stakeholders will collaboratively address any potential impacts in the same manner as all other projects have, to date. Although FRA believes the matter is sufficiently addressed under its current regulatory framework, this final rule addresses traction power system EMI and electromagnetic compatibility (EMC) as it relates to safety critical equipment and systems employed by TCRR. See § 299.435(e). This requirement is an adaptation of the electrical systems requirements for Tier II trainsets in 49 CFR 238.425. TCRR proposed applying these requirements to be consistent with deliberations by the Railroad Safety Advisory Committee on a recommended expansion of FRA's Tier III requirements in a future rulemaking. UPRR commented on this requirement contained in the NPRM, but did not understand the requirement, its context, or origins. The requirement under § 299.435(e) is not intended to provide a means for UPRR to negate its responsibilities to ensure that its own systems are designed to protect against undesired inputs and potential interference, as UPRR's suggested modifications and commentary recommend, but rather to illustrate the due diligence performed through the development of the rulemaking. Both FRA and TCRR recognized the importance of EMI/EMC for electrified high-speed railroads, and the inclusion of this requirement will ensure TCRR is responsive to the issue. UPRR also raised concern over sightlines being reduced at a particular highway-rail grade crossing on UPRR's system due to the possible future placement of a TCRR viaduct support column. UPRR's concern is based on the conceptual engineering provided as part of the environmental review process. Similar to the above discussion on possible EMI with UPRR's signal system, FRA would expect that the two railroads work together, and with the owner of the roadway, to identify and mitigate any hazards associated with reduced sightlines at any impacted highway-rail grade crossing, once final designs are developed. In addition, FRA expects that any localized risk presented regarding these issues would be identified in TCRR's risk-based hazard analysis program under part 270 and mitigated appropriately. E. Track Safety Several commenters raised concerns with the potential for buckling of the track structure due to high ambient temperatures in Texas during the summer. These general concerns were supplemented by comments that soil conditions and curvature in the alignment could exacerbate this potential. Many cited challenges UPRR has faced in this regard to support their concerns. A certain set of commenters further argued that an expert report had identified “sharp curves” in the alignment as a potential risk when compared to tangent track; while it is factually correct that the probability of rail buckling is higher for a curve compared to tangent track, the commenters seem to have mischaracterized this relationship in this particular instance to support their point. In either case, this regulation addresses this risk in a manner that is consistent with how this risk is managed for all railroads under FRA's jurisdiction, and when combined with JRC's adopted practice, provides a level of engineering and internal rail stress management that is superior to most, if not all, North American practice. The continuous welded rail (CWR) program, as proposed in the NPRM, is a translation and an adaptation of JRC's designs, standards, and procedures. Like the track and CWR requirements applicable to railroads on the general system under 49 CFR part 213, the track and CWR requirements in this rule are independent of the specific environmental conditions over which they are applied. The governing site-specific geotechnical, drainage, and weather conditions will drive the detailed design of the track and its support structure in order to achieve and maintain compliance with the regulatory requirements. (Please see the discussion under section IV. A. Context and Overview of this final rule.) These safety requirements set the standards that must be maintained by the track and track structure design. In addition, these safety requirements set the operational limitations associated with various track conditions. In effect, these represent variables that the railroad must consider when determining its final designs. If it is not possible to attain the required alignment geometry or maintain a specific track class due to site specific conditions, then the design operating speed must reflect what is safely achievable. Concurrently, safe operational limits will also be validated by comprehensive dynamic tests of the actual revenue trainsets over the entire line, as required under Subpart F. While the variables at play in this rule are specific to TCRR (based on JRC's designs), the fundamental railroad engineering principles and design process is not. To be clear, the conceptual engineering report included as part of the Final EIS does not represent the final design of TCRR's alignment and track structure. This regulation will help TCRR establish a safe, detailed design. The track safety standards under Subpart C of the final rule translate the track safety standards as implemented on JRC's Tokaido Shinkansen HSR system for TCRR's HSR system. As discussed in the NPRM, the Tokaido Shinkansen's technical safety requirements were developed over many years, and have been highly optimized in conjunction with the rest of the system ( i.e., signal and train control, and rolling stock), since service began over 50 years ago. The primary reason for adopting the Tokaido Shinkansen's technical safety requirements for TCRR is to ensure the safety of the TCRR operation by protecting the integrity of the system as established by JRC. These requirements are, in many cases, more stringent than requirements under 49 CFR part 213 that were developed for operation of a broad range of equipment (freight and passenger) over the general network. Furthermore, the approach JRC takes to manage internal rail stress in the Tokaido Shinkansen system is very different than standard North American practice. The final rule requires TCRR to comply with the JRC approach, to ensure that the integrity of the safety case behind the Tokaido Shinkansen can be maintained. In addition to the comprehensive use of well-designed expansion joints and other engineering means intended to manage internal rail stress caused by thermal (and other) loads, the regulation requires procedures, operational restrictions, or both, for high temperature scenarios that are more advanced and conservative than those employed by North American railroads. For example, these procedures require TCRR to monitor rail temperature continuously, which is far more stringent than the “average” temperature approach often used by most railroads. Likewise, a system of reference markers is required to be used on the field side of all track to help proactively identify any track shift that might occur. The ties and fastener system, and the ballast, are specifically engineered for the tonnage and speed of the equipment operating over it to provide maximum resistance to track buckling. This is superior to the practice of most U.S. railroads, which have to design to a general standard since a variety of equipment traverses their track. The comprehensive monitoring of track conditions through temperature, geometry and ride quality readings, in addition to traditional visual inspections, enables the railroad to analyze the conditions of the rail in a manner that is far superior to using only visual observation as suggested by commenters. A number of comments also focused on the effects that heat can have on CWR, and the fact that alignment curvature can increase horizontal rail forces which could, in-turn, lead to buckling if the track is not sufficiently restrained and internal rail stress is not managed effectively. Many comments focus on concerns associated with a specific curve referred to as the “Hockley curve.” These comments primarily stem from Delta Troy Interests, LTD. (Delta Troy), and its commissioned study conducted by the Virginia consulting firm R.L. Banks & Associates, Inc. 30 (RLBA). These comments and the RLBA study attempt to connect an increased probability for buckling to occur in non-tangent (curved) track, and particularly with the Hockley curve, with the fact that non-tangent rail can experience higher lateral rail forces due to thermal expansion. This specific portion of the proposed alignment does not represent a geometrically challenging portion, but Delta Troy indicated that its concern for this portion of proposed alignment is underscored by the fact that it traverses a site of a planned real estate development by the company. 30 See http://www.rlbadc.com. The commissioned RLBA study loosely connects the concern of track buckling with the fact that this particular curve includes a radius that could be near the allowable limit for maximum speed operation. Delta Troy, RLBA, and other commenters, insinuate that a different alignment would enable TCRR to avoid “numerous sharp curves.” Whether intentional or not, the comments and RLBA analysis ignore the fact that the Hockley curve (and other similar curves designed to allow for maximum design speed of a high-speed train), by nature, utilize a curve radius that is not fairly compared to the high-degree curvature that can pose a risk for track buckling, particularly when compared to freight railroads that utilize a more economical focused approach to CWR management. To insinuate that the curves are “sharp,” and thus intrinsically unsafe as proposed, is simply not true. The RLBA study attempts to describe the effects of curvature on the potential for track buckling. However, this is an issue that is not unique to TCRR, and there are various means by which track can be designed to address and mitigate these concerns safely. Further, while the RLBA study recognized that the NPRM contained a requirement for the railroad to develop a CWR plan to address internal rail stress related to CWR, the study incorrectly asserts that FRA should dictate specific alignment geometry as a matter of safety. This is not appropriate or necessary, as the safety concern is addressed by the track safety standards and CWR requirements, as described above. Moreover, this final rule addresses these issues in the same manner as all other U.S. railroad operations subject to FRA's jurisdiction. F. Crashworthiness and Occupant Protection Some commenters raised concerns regarding the crashworthiness requirements proposed in the NPRM. An examination of these comments, however, suggests that they stem from an incomplete reading of the NRPM. FRA proposed to retain the crashworthiness and occupant requirements established by JRC intended to address potential residual risks to the operation and to ensure the trainset can handle the expected operational loads experienced in the intended service environment. 31 While these requirements are not directly comparable to standard U.S. practice, as the NPRM explains, the service environment of TCRR's contemplated system is vastly different and presents significantly less risk than conventional North American railroad rights-of-way. Id. To adhere to requirements based on hazards that have otherwise been heavily mitigated or eliminated would require significant modification to the existing service-proven trainset design by changing the weight and dynamic characteristics, making it effectively a new trainset design, which would negate the service-proven nature of the system. 31 85 FR 14036, 14039. Some commenters asserted that FRA is exempting TCRR from any crashworthiness requirements so that the N700 series trainset technology could be imported. This assertion, however, is not supported by the requirements proposed in the NPRM, as FRA makes clear that its approach is to ensure that the trainset is safe for the environment in which it will operate. To this end, FRA is including additional requirements that are not inherent in the JRC approach to trainset structure design. These requirements include a dynamic collision scenario analysis that is designed to address the residual risks that could potentially exist within the TCRR operating environment. 32 Of particular note, in this instance, is the inclusion of the steel coil collision scenario outlined in § 299.403(c). Despite the safety record of JRC's Tokaido Shinkansen system, FRA believes that the North American environment poses unique risks with respect to potential objects that might somehow enter the protected ROW, either by accident or on purpose. In this case, FRA believes that requiring dynamic collision scenario analysis using the 14,000-lbs steel coil scenario derived from existing requirements to protect against risks presented by grade crossings can serve as a conservative surrogate for potential hazards that might be present on the TCRR ROW ( e.g., feral hogs, stray livestock, unauthorized disposal of refuse). With the inclusion of this dynamic collision scenario, and adaptations of existing U.S. requirements on emergency systems and fire safety, FRA believes it has reasonably addressed risks unique to the TCRR operating environment in a manner that appropriately considers crashworthiness and occupant protection standards for the operating environment intended, while at the same time keeping intact the service-proven nature of the equipment. 32 This reference to “operating environment” or “environment in which the equipment will operate” or other similar references, means, in this discussion, the fully dedicated, fully grade-separated ROW that is not comingled with any other type of equipment (freight or passenger). G. Reissuance of NPRM UPRR commented 33 that FRA needs to re-notice the proposed rule so that it: (1) Adequately considers the safety impact on already existing railroads that will intersect and/or run adjacent to the proposed system; (2) specifically evaluates whether modification of each safety-critical aspect of the Japanese Shinkansen system is needed in order to transplant and implement them in the United States; and (3) provides sufficient detail to enable the public to understand the safety standards, operational requirements, or regulatory framework applicable to TCRR fully. UPRR's comments express concern that the NPRM “lacks any analysis of the potential disruption to other railroad operations and infrastructure and the consequential safety and economic impacts to communities and the region,” and the NPRM “focuses solely on the safety of [TCRR's] operations and neglects to consider the potential impact on safety of current rail operations; operations that are fully compliant with existing FRA regulations.” 34 33 Docket No. FRA-2019-0068, Document ID: FRA-2019-0068-0316. 34 Id. FRA received a similar comment from Delta Troy. 35 Delta Troy identified six “deficiencies” that “plague the safety analysis” in the NPRM, and elaborated that any attempt to fix the deficiencies in a final rule would be so extensive that the final would look nothing like the NPRM and therefore would not be a “logical outgrowth” of the NPRM, thus necessitating FRA to re-notice the proposed rule. The six areas identified by Delta Troy are that the NPRM: (1) Failed to adequately evaluate possible EMI from TCRR to the adjacent UPRR rail line; 36 (2) unreasonably assumed exigent circumstances will not require coupling or uncoupling; 37 (3) failed to examine the safety impact of TCRR's grade separation proposal on the adjacent UPRR rail line; 38 (4) failed to acknowledge or examine the possible increase in truck traffic and grade crossing usage due to TCRR's proposed viaduct; 39 (5) did not recognize that a different alignment could alleviate the risks of heat-induced track buckling and slow orders; 40 and (6) ignored the context and local circumstances in which proposed operations will occur. 41 35 Docket No. FRA-2019-0068, Document ID: FRA-2019-0068-0315. 36 See section IV. D. Interference with the Union Pacific Railroad of this final rule. 37 See sections IV. J. Emergency Response and V. D. Decision under 49 U.S.C. 20306, Exemption for technological improvements of this final rule. 38 See section IV. D. Interference with the Union Pacific Railroad of this final rule. 39 See section IV. D. Interference with the Union Pacific Railroad of this final rule. 40 See section IV. E. Track Safety of this final rule. 41 See section IV. J. Emergency Response of this final rule. FRA responds to Delta Troy's six identified “deficiencies” in other areas of this final rule, and so FRA will address UPRR's concerns here. Primarily, UPRR expressed concern with possible EMI resulting from TCRR's contemplated system, along with potential increased risk at certain grade crossings, which is addressed in section IV. D. Interference with the Union Pacific Railroad. What remains are essentially concerns regarding whether the requirements of the rule, as they were proposed, properly account for the effect on safety of adjacent railroads, that FRA has somehow deprived the public of a meaningful opportunity to comment, and that the requirements are consistent with the requirements of JRC. UPRR stated in its comment that the NPRM was conclusory in its approach in “importing” the Shinkansen's regulatory framework without properly accounting for the effect on the safety of other existing rail operations or of the costs imposed on those other rail operations. 42 However, FRA expects that the final rule framework would have no direct bearing on the safety of UPRR's operation, assuming it is in compliance with its own requirements to protect its systems from electrical interference. FRA makes clear that it is imposing its own regulatory regime on TCRR. As discussed above, this rulemaking is translating the safety-critical technical requirements as implemented on JRC's Tokaido Shinkansen system to allow FRA to provide effect safety oversight, as discussed in the NPRM. 43 42 See also section IV. M. Regulatory Evaluation of this final rule. 43 84 FR 14036. UPRR also stated that FRA has deprived the public of a meaningful opportunity to comment. FRA disagrees and has clearly met the minimum requirements of the Administrative Procedure Act (APA). Under 5 U.S.C. 553(b)(3), when engaged in rulemaking, an agency is required to provide notice of a proposed rulemaking to the public through publication in the Federal Register , and shall, among other things, include either the terms or substance of the proposed rule, or a description of the subjects and issues involved. The NPRM, as it explained, was based on the petition and associated supporting technical information, all of which was made available for public review and scrutiny. 44 In addition, the NPRM exceeded the statutory requirement to provide merely the substance of the proposed rule, by providing the entirety of the proposed rule text for critical examination by interested members of the public. 44 85 FR 14036, 14038. In a related concern, UPRR stated that it was unclear what FRA meant when it used the terms “shall be based on” in the regulatory text, when referring to requirements for TCRR. For example, under § 299.707, FRA is requiring that TCRR's initial maintenance schedules, included as part of its inspection, testing, and maintenance program, be based on those maintenance schedules in effect on JRC's Tokaido Shinkansen system. UPRR asserted that the use of this reference created ambiguity to the degree that it denied the public a meaningful opportunity to comment. Again, FRA disagrees. FRA is unclear as to what ambiguity exists in light of the information in the rulemaking docket, in both meeting presentations and associated section analyses, provided by TCRR. 45 FRA placed this information in the docket, to allow interested members of the public to scrutinize and provide comment. As part of those documents, the maintenance intervals in effect on JRC at the time of submittal of the documents was included. As part of the inspection, testing, and maintenance program review and approval process under this final rule, TCRR must demonstrate how its initial maintenance intervals replicate those of JRC. FRA would expect TCRR to include the most current maintenance intervals in use by JRC for the Tokaido Shinkansen. 45 For example, the following provides information on maintenance intervals associated with rolling stock: Docket No. FRA-2019-0068, Document IDs. FRA-2019-0068-0016 “2017—Exhibit C-8 Subpart J Section Analysis (Inspection Testing and Maintenance),” FRA-2019-0068-0022 “2017—Presentation M10P04—N700 Bogie ITM (CI redacted),” and FRA-2019-0068-0024 “JRCs Practice on Movement of Defective Equipment (CI redacted).” Along with the claims discussed above, UPRR raised several comments regarding some of the regulatory text associated with §§ 299.13(c)(3), 299.207, 299.209, 299.215, 299.341, and 299.351-299.357. The concerns were focused on ensuring that the language of those sections, as proposed in the NPRM, would be consistent with similar requirements for JRC's Tokaido Shinkansen system so that TCRR would be able to replicate the Tokaido Shinkansen properly. UPRR was concerned that FRA did not ensure this consistency and asked FRA to explain in detail whatever differences might exist in a reissued NPRM so that the public could meaningfully participate in the rulemaking process. FRA believes that UPRR does not understand fully what FRA stated in the NPRM, nor what the rule text is accomplishing for the above-cited sections of this final rule. As discussed in the NPRM, TCRR's petition represented that the regulatory requirements offered by TCRR were translated from the technological and operational aspects of the JRC Tokaido Shinkansen. 46 Each of the above-cited sections referenced by UPRR are either technological or operational in nature. 46 85 FR 14036. First, as it relates to the personnel training requirements under § 299.13(c)(3), it is unclear to FRA what precise misunderstanding UPRR has about this proposed requirement. Section 299.13(c)(3) requires TCRR to comply with part 243, which is a performance-based regulation that is designed to accommodate myriad different railroad job functions and personnel qualifications. This part provides a railroad with broad autonomy in determining how its safety-critical employees are categorized and does not dictate in any way the required level of training or qualification of employees as UPRR seems to suggest. Part 243 is designed to help ensure that safety critical roles and qualifications are identified, and that proper adherence to an adequate training program is maintained and documented. JRC's training and qualification program is very thorough and comprehensive and far exceeds the level of employee training, development, and hands-on experience practiced by most, if not all, North American rail operators. As such, TCRR should have no difficulty complying with the requirements of part 243, and TCRR should be able to leverage fully JRC's proven approach to personnel training and qualification. In a similar vein, UPRR's comment regarding the PTC Safety Plan Content Requirements in § 299.207 is equally perplexing. The PTC requirements proposed are derived from 49 CFR part 236, subpart I, but modified to reflect only those requirements common to all systems, and specific to standalone systems, such as TCRR's. PTC is not a technology itself, but rather a set of performance requirements that establish the minimum functionality a train control system must have, the most fundamental of which are required by statute. PTC terminology used in this context is unique to the U.S. statutory and regulatory requirements. The PTC Safety Plan (PTCSP) is the primary means by which the railroad demonstrates compliance with the requirements in subpart B of this final rule. And, as long as TCRR's train control system, as implemented in Texas, meets the minimum performance and functionality requirements of subpart B, what requirements exist in Japan are irrelevant in relation to PTC, especially as Japan has no equivalent PTC requirement. To put it another way, subpart B requires that TCRR demonstrate that its PTC system, as implemented and installed in Texas, fulfill the minimum safety requirements—it is not intended to prove JRC's technology or its implementation. Likewise, paragraph (a)(6) dictates that TCRR demonstrate the adequacy of its program, but it does not prescribe how TCRR must do so. In this respect, any pertinent training or qualifications required for the successful implementation of JRC's Automatic Train Control (ATC) technology would be expected to be articulated within TCRR's plan and consistent with JRC's training. With respect to §§ 299.209 and 299.215, these sections were not specifically included in TCRR's petition. However, in TCRR's petition, TCRR stated that it would comply with subpart I of 49 CFR part 236, in toto. As further explained in the NRPM, FRA stated that it was tailoring the requirements of part 236, subpart I, to TCRR's standalone PTC system. 47 Sections 299.209 and 299.215 contain virtually equivalent requirements as §§ 236.1029 and 236.1039. And with respect to the cited track sections, §§ 299.341, and 299.351-299.357, TCRR provided FRA the language for these sections, again representing in its petition that they translate the technological and operational aspects of JRC's Tokaido Shinkansen. 47 85 FR 14036, 14041. In addition, part 299, subpart B of this final rule is a performance standard. This provides TCRR appropriate flexibility in how it complies with the requirements, allowing TCRR to replicate the service-proven, safety-critical aspects of JRC's Tokaido Shinkansen. In its regulatory language, FRA is not requiring TCRR to deviate from JRC practice, but expects TCRR to remain consistent with JRC practice. In addition to the six “deficiencies” noted above, Delta Troy also commented that FRA's NPRM was deficient and contrary to the APA in that it did not provide adequate notice in the docket of an “economic analysis,” and that the NPRM was based on a “world that no longer exists.” In support of its assertion that FRA failed to provide adequate notice of an “economic analysis” in accord with the APA, Delta Troy argues that it could not find any type of economic analysis despite FRA's repeated mentioning of such an analysis during the telephonic hearings held on May 4-6, 2020. Delta Troy cited to the transcript of the May 6th hearing, noting that on page 3 of the transcript the Hearing Officer stated that the “purpose of tonight's hearing is for FRA to listen to any interested party's comments on the technical safety requirements proposed in the NPRM along with the associated economic analysis published in the rule's online docket.” 48 Further, Delta Troy explained that it examined the NPRM and could not find an economic analysis contained in the NPRM, nor in the rulemaking docket. 48 05.06.2020—TCRR Telephonic Hearing Transcript at page 3, available at www.regulations.gov, Docket No. FRA-2019-0068, Docket ID: FRA-2019-0068-0300. FRA disagrees. FRA provided its evaluation of the regulatory burden on the regulated entity in the NPRM as it is required to under Executive Order (E.O.) 12866. 49 49 Section V. A. Executive Orders 12866, 13771, and DOT Regulatory Policies and Procedures of the NPRM. 85 FR 14036, 14047. In support of its claim that the “NPRM must be replaced as it is based on a world that no longer exists,” Delta Troy invokes the coronavirus disease 2019 (COVID-19) public health emergency. Delta Troy asserted that the future of intercity travel will be dramatically different from the recent past. It further asserted that the decision to move forward with the rulemaking was based on projected ridership and train designs that were developed prior to the COVID-19 public health emergency, and thus now must be re-evaluated in light of the current global situation, and no final rule should be issued until the re-evaluation is complete. While FRA agrees that these are unprecedented times, it disagrees that the rulemaking is obsolete. As explained in section IV. B. Regulatory Approach of this final rule, FRA advanced the rulemaking because TCRR's proposal: (1) Is consistent with FRA's mission is to enable safe, reliable, and efficient movement of people and goods by rail; and (2) demonstrated that the proposed system would replicate the system and operations of the Tokaido Shinkansen system and its 50-year safety record. This rulemaking removes the government barrier to private industry seeking to bring transportation innovations to the United States; FRA's analysis in an E.O. 12866 context properly relates to the effects of government regulatory burdens, and not whether TCRR's proposed operation is financially viable. In addition, the analysis performed under E.O. 12866 as part of the NPRM and this final rule do not rely on ridership estimates or other projections of demand. To the commenter's assertion that train design must be reevaluated due to the pandemic, the technical safety requirements identified in the NPRM remain valid. FRA is not amending any of its other passenger equipment safety regulations to mandate train designs account for any form of social distancing. FRA expects the railroads and the public to abide by protocols and guidance issued by other Federal agencies, and State and local governments, and does not believe that rulemaking is appropriate. H. Electrical Arcing From the Overhead Catenary System A number of commenters raised concern about the “sparking” effect often associated with electrified trains. This concern was tied to the fact Atmos Energy maintains a natural gas compression station near the contemplated TCRR alignment, and that a “spark” from a passing high-speed train could in-turn ignite some volume of gas present at either the compression station, or pipelines along the route. However, no specific context or evidence was provided to elaborate why the design or operation of either the railroad, the compression station, or a pipeline, provides for a specific risk to adjacent property. The “spark” often associated with electrified train systems is caused when there is a separation between the power source (the catenary system) and its collector (the pantograph on the roof of the train). When this separation occurs, it is possible for current to continue to flow between the power source and collector. In these situations, the high voltage ionizes the air and causes what is known as an electrical arc or “spark” between the two components. This occurrence is part of the normal operation of an electrical traction power system like the one proposed by TCRR, and by itself does not pose any particular safety risk. Existing FRA regulations do not cover electrical arcing because of the lack of a particular safety risk. Further, the JRC technology and maintenance practice that is being adopted by TCRR has refined this interface to minimize this arcing effect significantly, and to a degree that is not comparable to what might be witnessed on light-rail or other conventional U.S. electrified operations. FRA does not believe that this issue requires regulatory action within this rule. However, as this issue has been raised, FRA expects TCRR to work with Atmos Energy, and any other entity to examine the risk, and take whatever precautionary measures that are necessary. To this extent, FRA would expect TCRR appropriately addresses this risk within the context of its System Safety Program, and is willing to provide assistance in coordinating with external entities or regulators, as appropriate. I. Right-of-Way Barrier Protection A certain number of comments were raised concerning ROW protection and the potential use of barriers in certain situations. These comments primarily involved the ability of feral hogs to access the track, but also raised questions regarding the protection of TCRR structures and track from UPRR derailments. With respect to general ROW protection, and specifically the risk posed by local feral hogs, FRA notes that safety is generally established through multiple fronts. In this case, in addition to requirements for ROW protection within this rule under § 299.13(b)(3), FRA also points to its crashworthiness discussion in section IV. F. Crashworthiness and Occupant Protection, above. Most notably, in developing the requirements of this final rule, both FRA and TCRR considered the potential for differences between the Japanese and U.S. operating environments. The existence of animals and other potential obstructions supports the adoption of the final rule requirement to verify the crashworthiness of the trainset structure to protect against the residual risk that might exist beyond even the best ROW protection measures. As it relates to protection of TCRR structures or ROW from potential incursions due to UPRR derailments, such mitigations are not covered under FRA's current regulations, and protection of bridge piers is typically driven by industry or local standard. Factors that would drive such decisions are highly variable based on specific site conditions ( e.g., track centers, curvature, difference in height between top-of-rail, etc. ) and cannot be adequately addressed globally. FRA expects that once structural designs exist, any localized risk presented would be identified in TCRR's risk-based hazard analysis program under part 270 and mitigated appropriately. J. Emergency Response As part of the public hearing process, several comments were received with respect to emergency response and access for first responders. These comments largely articulated concerns regarding the effect that the absence of certain safety requirements might have on first responders' ability to get inside a trainset, the impact construction might generally have on emergency response times, the ability of first responders to access the ROW, and coordination with local first responders to ensure adequate capability to respond to an emergency on the high-speed railroad. Comments related to the first topic, the ability first responders gaining access to a trainset, are addressed in the discussion regarding safety appliances under section V. D. Decision under 49 U.S.C. 20306, Exemption for technological improvements of this final rule. Those comments related to potential disruptions to normal emergency response routes caused by construction are outside the scope of this rulemaking. 50 FRA defers to local and State officials in the coordination of potential road closures or other impacts to potential emergency response times caused by construction. 50 While outside the scope of rulemaking FRA considered potential disruptions to emergency response routes in Section 3.16.5.2.2, Safety and Security, Build Alternatives of the Final EIS. TCRR has agreed to implement mitigation to address potential delays. See Section 3.16.6.2, Safety and Security, Mitigation Measures of the Final EIS, SS-MM#1, Model Construction Impacts on Emergency Response Times of the Final EIS. As it relates to comments regarding ROW access and TCRR coordination with local first responders, FRA notes that the NPRM proposed to apply all Passenger Train Emergency Preparedness requirements contained within 49 CFR part 239, and is doing so in this final rule. Right-of-way access, coordination, and establishment of the emergency equipment needs and training requirements for local first responders are a part of the planning process required by part 239. Many of these specific planning activities cannot begin in earnest until final ROW designs are developed. This rule only establishes the planning requirements, with the execution of those requirements naturally occurring at a later time, and is identical to the requirements with which all other passenger railroads in the U.S. must comply. A number of commenters objected to TCRR's limited early engagement with local first responders. Specifically, commenters raised concern with TCRR having asked the local first responders what equipment the first responders thought would be necessary in responding to an emergency on the railroad. Commenters expressed disappointment that TCRR was not advising the local first responders as to the type of equipment TCRR would expect the first responders to have. In addition, commenters noted that TCRR has not provided a list of necessary or required equipment to the local first responders. This appears to be a byproduct of misunderstanding the level of maturity of the system, and the fact that only conceptual design exists at this stage. The actions taken by TCRR at this early stage demonstrate a proactive approach to the matter, and will help inform the railroad on the capability of the local first responders along the alignment. This knowledge will benefit TCRR as it continues to develop the engineering design, and situations such as ladder height, emergency egress and equipment needs, and ROW access capability. K. Noise Emission and Vibration Several commenters raised concerns about the noise emission and vibration that will be caused by the passing of the trainset once in service. With respect to noise emission, when looking at § 299.3(c)(3) as proposed in the NPRM and in this final rule, TCRR must comply with 49 CFR part 210, Railroad Noise Emission Compliance Regulations, which prescribes minimum compliance regulations for enforcement of the Railroad Noise Emission Standards established by the Environmental Protection Agency in 40 CFR part 201. There are no required vibration standards for railroads. However, FRA evaluated the potential impacts resulting from vibration during construction and operation of the HSR system in the Final EIS, and found that while there may be some annoyance impacts due to vibration during construction, no vibration impacts due to operations are anticipated. Nevertheless, the Final EIS identified mitigation measures for potential noise and vibration impacts, which includes compliance with local regulations on noise and vibration as well as conducting additional noise and vibration assessments and monitoring noise and vibration during operations testing. 51 In addition, where construction activities such as pile driving for structures and vibratory compaction for ground improvements would occur within 50 feet of underground utilities, TCRR would coordinate with the utilities to identify where relocation and/or encasement would be needed to avoid vibration damage from nearby construction, and compensate the utilities for such work. 52 TCRR has agreed to implement the identified mitigation. See section VI. C. Mitigation Commitments, of this final rule. 51 FRA. Dallas to Houston High-Speed Rail—Passenger Service from Houston to Dallas https://railroads.dot.gov/environmental-reviews/dallas-houston-high-speed-rail/dallas-houston-high-speed-rail-passenger, Final Environmental Impact Statement, Section 3.4., Noise and Vibration. 52 Id. at 3.4-33. L. Eminent Domain One commenter raised the issue of eminent domain and asked FRA what influence its Federal actions would have on any eminent domain issue. To the best of FRA's knowledge, eminent domain powers under the Fifth Amendment of the U.S. Constitution are not involved. FRA understands the eminent domain issues to be centered on the interpretation of various Texas State statutes. FRA defers to the State of Texas to interpret its own statutes. M. Regulatory Evaluation Several commenters discussed the financial feasibility of TCRR and stated that FRA did not take this into account when it issued the NPRM. However, it is outside FRA's regulatory scope to consider the economic viability of a specific railroad project, so it was not addressed as part of the NPRM. 53 FRA's economic analysis in the NPRM evaluates the impact of the Federal regulatory burden on TCRR operations. 54 FRA's responsibility is to ensure that the railroad industry is operating in a safe manner, not to examine the economic viability of a specific project. 53 85 FR 14036, 14048, FN 10. 54 In addition, as required by NEPA, FRA considered as part of the EIS the overall direct and indirect impacts to the socioeconomic environment that may occur as a result of TCRR's construction and operation of its proposed project, including employment and earnings, property impacts, property tax and net change in tax revenue. FRA. Dallas to Houston High-Speed Rail—Passenger Service from Houston to Dallas https://railroads.dot.gov/environmental-reviews/dallas-houston-high-speed-rail/dallas-houston-high-speed-rail-passenger, Final Environmental Impact Statement, Section 3.14.5.2.3, Economic Impacts. In addition, several commenters asserted that FRA did not adequately account for the costs in its economic analysis. As discussed in the NPRM, FRA concluded that since TCRR's compliance with the requirements in this rulemaking are voluntary, the rulemaking does not impose any additional Federal regulatory burdens. 55 Costs such as equipment design, equipment changes, associated studies, and other costs are costs voluntarily assumed by TCRR to create the specific system contemplated by this rule. TCRR petitioned FRA for a rulemaking so it could create a unique HSR system, which does not meet Tier III passenger equipment requirements. 55 85 FR 14036, 14047. UPRR commented that the rulemaking did not address the effect of the implementation of TCRR's system and on the safety of other entities. UPRR further stated that although TCRR's actions may be considered voluntary, TCRR's system would introduce outside interference on adjacent railroads, which require action and incur cost to address. FRA understands that there could be costs to existing railroads when an adjacent railroad begins operations, these costs will not necessarily occur and FRA is unable to estimate them. These costs are speculative and are difficult to determine because the final designs for the TCRR project are not yet developed. Therefore, these costs are not included in FRA's economic analysis. Further, as explained above in response to UPRR concerns regarding potential interference, FRA expects that the final rule framework would have no direct bearing on the safety of UPRR's operation. Several commenters also stated that the requirements, as proposed in the NPRM, would have an impact on small entities and FRA did not account for this within its regulatory flexibility analysis. FRA, in conjunction with the Small Business Administration (SBA), has developed a definition of small entities that is used when evaluating the economic impact of regulations. Commuter railroads serving populations of 50,000 or less are considered to be small entities, therefore TCRR is not a small entity and the regulation will not impact any small entities. For further information, please see FRA's discussion of its regulatory flexibility analysis, as required by the Regulatory Flexibility Act 56 and E.O. 13272, 57 under section V. B. Regulatory Flexibility Act and Executive Order 13272; Regulatory Flexibility Assessment of the NPRM 58 and section VII. B. Regulatory Flexibility Act and Executive Order 13272; Regulatory Flexibility Assessment of this final rule. 56 5 U.S.C. 601 et seq. 57 67 FR 53461 (Aug. 16, 2002). 58 85 FR 14036, 14048. N. Enforcement As stated in the NPRM under section IV. F. Enforcement, FRA will publish a civil penalty schedule on its website. 59 Because such penalty schedules are statements of agency policy, notice and comment are not required prior to their issuance, nor are they required to be published in the CFR. 60 Although not required, FRA solicited comment on this subject, but did not receive any comments on the types of actions or omissions under each regulatory section that would subject a person to the assessment of a civil penalty. 59 85 FR 14036, 14046. 60 5 U.S.C. 553(b)(3)(A). FRA also clarifies that other enforcement tools, such as emergency orders, individual liability actions, or compliance orders, are available for FRA to use, as necessary, in providing safety oversight of TCRR. V. Discussion of Final Rule and Regulatory Changes A. Non-Substantive Corrections TCRR, in its comments, pointed out a few instances where FRA had inadvertently included (or failed to include) certain regulatory text that was not submitted in the proposed rule text included with TCRR's petition. In response, FRA is modifying the final rule, but these changes are not substantive. Under proposed § 299.301(b), FRA included maintenance-of-way (MOW) yards (locations where MOW equipment is stored) when discussing restoration or renewal of track class H2. As track within MOW yards will be classified only as track class H0, it was not correct for FRA to include a reference to yards in this provision. Accordingly, in this final rule, FRA has removed “yards and” from paragraph (b). Under proposed § 299.345, FRA converted a table appearing in TCRR's petition to rule text. The table depicted the frequency of certain types of required track inspections. In converting the table to text, FRA clarified the requirements contained in the table. However, in doing so, there were also some inadvertent errors in the NPRM rule text. Under § 299.345(b)(1), which contains the requirements for safe walkway inspections, FRA failed to include the text from footnote 1 to § 2xx.343(c) from the TCRR petition's rule text. The footnote permitted a visual inspection during overnight hours and, in the event of extreme weather, from the trainset cab in lieu of a safe walkway inspection. To correct this oversight, FRA is adding new paragraph (b)(1)(vii), which permits a visual inspection from the trainset cab or an on-track visual inspection in lieu of a safe walkway inspection in the event of extreme weather. FRA slightly modified the language to make clear that an inspection during the overnight hours is considered an on-track visual inspection. In addition, under § 299.345(b)(2), FRA proposed requirements for on-track inspections for track other than track located within Train Maintenance Facilities (TMFs) and MOW yards. Proposed paragraph (b)(2)(iii) specified that turn-outs and track crossings were to be inspected at least once a week, with a minimum of three calendar days between inspections. However, FRA inadvertently failed to distinguish between turn-outs and track crossing on ballasted track versus on non-ballasted track. In this final rule, FRA is making that distinction by clarifying that the requirements of § 299.345(b)(2)(iii) apply only to turn-outs and rail crossings on ballasted track. FRA has added new paragraph (b)(2)(iv) for non-ballasted track, which specifies that turn-outs and rail crossings on non-ballasted track shall have an on-track inspection conducted at least once every two weeks, with a minimum of six calendar days between inspections. This is consistent with the rule text in TCRR's petition. Under § 299.345(b)(3), FRA inadvertently restricted the conduct of on-track inspections to “during maintenance hours.” Under § 299.301(b), track maintenance in MOW yards and TMFs is not restricted to maintenance hours, as it is for mainline track under § 299.301(a). As such, track inspections can be conducted under traffic conditions, so long as proper on-track safety is provided as required under 49 CFR part 214. Under § 299.3(c), TCRR must comply with 49 CFR part 214 for on-track safety, with the exception of § 214.339. Accordingly, in this final rule, FRA removed “during maintenance hours” from § 299.345(b)(3) and added new paragraph (b)(3)(iii) to make explicit the requirement that 49 CFR part 214 (with the exception of § 214.339) be followed for on-track safety within the TMFs and MOW yards when on-track inspections are performed under traffic conditions. Nothing in this discussion should be construed as affecting the general prohibition under § 299.301(a) of performing on-track maintenance or inspections of track, other than track in MOW yards and TMFs, under traffic conditions. In those locations, MOW work and revenue service must still be temporally separated, as discussed in the NRPM. 61 61 85 FR 14036, 14038 and 14043. Under proposed § 299.609(a), FRA inadvertently left out the word “types” after vehicle. In this final rule, FRA has added the word “types” to clarify the requirement, which is consistent with FRA practice regarding vehicle/track interaction qualification. In addition to the above changes, FRA also made several minor technical changes. Under § 299.315(g), FRA removed an incorrect cross-reference to § 299.337 as the term “vehicle type” is not used in § 299.337. Under § 299.407(d), FRA changed “emergency window exit” to “emergency egress window” for consistency of term use. FRA made the same change for the same reason to § 299.427. Finally, under § 299.439(b), FRA fixed an incorrect reference to “this paragraph” and correctly changed the reference to “paragraph (c) of this section.” B. Evaluation of Substantive Changes 1. § 299.5 Definitions In its comments, TCRR requested that FRA make some changes to the rule text to help remove ambiguity. Under § 299.5, TCRR requested that FRA amend the proposed definition of “passenger equipment.” In support of its request, TCRR stated that the proposed definition implied that TCRR's trainsets would be approved for use on JRC's Tokaido Shinkansen HSR system, which TCRR commented is not correct. While TCRR's trainset will be based on current or future variants of the N700 series trainset approved for use on the Tokaido Shinkansen HSR system, TCRR's trainset itself will not be approved for use on the Tokaido Shinkansen HSR system, as it has fewer passenger cars than what JRC runs. Accordingly, TCRR requested that FRA change the definition of “passenger equipment” to mean the N700 series trainset that is based on trainsets currently in service, or future variants operated on, JRC's Tokaido Shinkansen system, or any unit thereof. FRA agrees and has made the change in this final rule. To be clear, the term “passenger equipment” is referring to the N700 series passenger trainset that TCRR will operate on its system, which is based on the trainset in use presently, or future variants thereof, by JRC on the Tokaido Shinkansen HSR system. What is important is not whether the TCRR trainset has been approved for use on the Tokaido Shinkansen HSR system, but that it is based on that technology and complies with the requirements of this rule. In addition, under § 299.5, TCRR requested that FRA amend the proposed definition of “in passenger service/in revenue service.” In support of its request, TCRR pointed to proposed § 299.13(a)(3), which discussed and defined the requirement for temporally separating scheduled ROW maintenance from revenue passenger operations. TCRR raised a concern in its comment that leaving a passenger trainset properly secured in a station overnight during MOW operations could run afoul of the temporal separation requirement. TCRR further explained that its understanding of the temporal separation requirement under § 299.13(a)(3), as proposed in the NPRM, is that the ROW must be cleared of all revenue service trainsets (including any trainset repositioning moves) in order to ensure trainsets cannot be moved into established maintenance zones. Moreover, TCRR stated that it would not consider a parked, properly secured trainset in a station location to be a revenue service trainset because it would not be actively carrying or available to carry passengers. TCRR further stated that a trainset could be considered available to carry passengers, and thus considered “in passenger service/in revenue service” only after receiving power from the overhead catenary system and receiving a pre-departure inspection by the driver. And, as overhead catenary power will be restored to the ROW only after it has been cleared of MOW equipment, with the general control center returning the signal and trainset control system to the state required to protect revenue operations, a trainset could not be considered “in passenger service/in revenue service” during MOW operations, thus accomplishing the temporal separation required by the rule. Accordingly, to codify this understanding, TCRR requested that FRA add to the definition of “in passenger service/in revenue service” a carve-out that a trainset that is parked and properly secured within a station overnight is not considered to be in revenue service, and thereby it does not need to be cleared from the ROW prior to MOW operations commencing. The purpose of the temporal separation requirement is two-fold: (1) Protection of passengers in the high-speed trainsets from a collision with heavy MOW equipment; and (2) protection of the MOW employees performing work within the ROW from the risk of being struck by a high-speed trainset. In both situations, the risk involves a moving high-speed trainset. As discussed in the NPRM, removal of overhead catenary power to those sections of the ROW where MOW operations are occurring or planned to occur is a requirement, 62 and without overhead catenary power, a high-speed trainset is incapable of generating tractive power, so those two risks, a collision between a high-speed trainset carrying passengers and MOW equipment, and MOW employees being struck by a high-speed trainset, are heavily mitigated. 62 85 FR 14036, 14043. However, when looking at the requirements for temporal separation under § 299.13(a)(3), there is a requirement that the railroad must complete its trainset repositioning moves prior to the commencement of MOW operations. Trainset repositioning moves are not considered “in passenger service/in revenue service,” but rather considered “in service,” as that term was defined in the NPRM, as trainsets being repositioned would not necessarily be available to carry passengers. In addition, as scheduled MOW operations 63 occur outside of revenue service hours, FRA would expect trainsets to be loaded with passengers or available to carry passengers, and thus would not consider trainsets outside of revenue service hours to be “in passenger service/in revenue service.” But, they may be considered “in service.” 63 Unscheduled or emergency MOW operations during revenue service hours to repair a broken rail, for example, requires TCRR to halt revenue service over the affected portion of the right-of-way until the repair work is completed and has been inspected. See § 299.301(a) (prohibiting the restoration or renewal of track under traffic conditions that is located other than in TMFs and MOW yards). Accordingly, FRA is adopting the proposed definition of “in passenger service/in revenue service” in this final rule unchanged. But, FRA is amending the definition of “in service” to include a fourth exception to address the situation where TCRR has a trainset parked in a station location that is properly secured and has been deemed not in service by the railroad (meaning TCRR is not intending on repositioning or otherwise moving the trainset until the cessation of MOW operations). 2. Subpart B—Signal and Trainset Control System In its response to the NPRM, TCRR provided several comments and suggested edits with respect to FRA's proposed requirements for a PTC system, the certification process, and TCRR's interpretation of how those requirements should apply to its proposed use of the Tokaido Shinkansen ATC technology. FRA finds that many of these comments appear to originate from a misunderstanding of how the term “system” is used and what, exactly, FRA must certify under 49 U.S.C. 20157, Implementation of positive train control systems. TCRR commented on § 299.201(c) and asserted that it does not anticipate the need for any regression testing 64 before FRA certifies TCRR's PTC system. In support of its assertion, TCRR stated that TCRR's system will be based on the service-proven Tokaido Shinkansen ATC system, and TCRR does not anticipate that any changes will be made to safety-critical software prior to obtaining PTC System Certification from FRA. Further, while TCRR does not believe regression testing would be necessary prior to its initial installation of ATC and FRA certification, TCRR does believe regression testing is appropriate for potential changes to its ATC technology that could possibly occur in the future. 64 Regression testing is used to ensure that previously tested software still performs as intended after a change to that software. As proposed in the NPRM, § 299.201(c) generally authorizes TCRR to conduct field testing of its uncertified PTC system and field regression testing of its FRA-certified PTC system, which could encompass, for example, future modifications to ATC functionality. As proposed, paragraph (c) was not intended to specify what type of tests are required in either instance. The exact tests to be performed are to be defined by the railroad in the development of its PTCSP, particularly with respect to the content requirements in § 299.207(a)(7), (a)(9), and (a)(10). TCRR must demonstrate that its PTC system, as built, fulfills the requirements contained in subpart B. The distinction that TCRR's proposed PTC system is based on a service-proven technology has no bearing in this instance. Under the statutory mandate, FRA must certify that a railroad's PTC system complies with the applicable PTC regulations (in this instance, 49 CFR part 299, subpart B), not the theoretical capability of the technology. 65 What constitutes safety-critical software has yet to be defined in detail by TCRR, as required under § 299.441, and the changes required to be made to the existing ATC software (whether on the executive or application side) have yet to be described. 65 49 U.S.C. 20157(h). As such, although the term “regression testing” in paragraph (c) is used in the context of post-certification field testing, this is not intended to suggest that this is the only circumstance that would call for regression testing, as several railroads have performed regression testing on an ongoing basis before and after obtaining PTC System Certification from FRA. FRA does not agree with TCRR's reading of § 299.201(c) as requiring regression testing; that paragraph merely authorizes TCRR to conduct various levels of field testing, including regression testing. FRA believes the necessary level of testing and validation should be determined as TCRR's system is developed and implemented, as required under § 299.207. In its comments, TCRR also asserts that because it plans to use an existing signaling system, the requirement to include a “description of the safety assurance concepts that are to be used for system development, including an explanation of the design principles and assumptions” within TCRR's PTCSP (see § 299.207(a)(2)) should only apply only to modifications to its system. TCRR contends that because the system was developed long ago, these principles would not apply in the same manner as they would to a system that is under development. TCRR recommends that paragraph (a)(2) be modified to refer only to safety-critical changes to the ATC system, not the initial version of TCRR's ATC system. FRA disagrees with this perspective. TCRR is correct that the core safety assurance concepts, design principles, and design assumptions are fundamental to the development of any new system, but they are also equally important in the implementation of existing technology. These core concepts, principles, and assumptions provide a baseline for safety assurance that govern the safe implementation of a system, whether proven or novel. In the case of TCRR, although the ATC system used on JRC's Tokaido Shinkansen HSR system was developed years ago, FRA would expect that the fundamental concepts ( e.g., fail safe), essential design principles, and any assumptions critical to the safety case of the system are understood by TCRR in a manner that can be articulated as part of its PTCSP. If TCRR cannot articulate these fundamental concepts, FRA would question how TCRR intends to ensure that the application and installation of the system in Texas is performed correctly. FRA acknowledges that JRC's Tokaido Shinkansen ATC technology has an extraordinary safety record, but TCRR must provide sufficient information in its PTCSP for FRA to certify that the ATC system in Texas fulfills the requirements under 49 CFR part 299, subpart B. With respect to the requirement to include a complete description of TCRR's verification and validation process in its PTCSP, under § 299.207(a)(5), TCRR proposed that operational data from JRC's Tokaido Shinkansen HSR system would serve to adequately demonstrate that the technology and its functions, as conceived by JRC, have been successfully validated. FRA suspects that TCRR's interpretation comes from its perception that this requirement, and the corresponding requirement in 49 CFR 236.1015(d)(5), are intended for the validation and verification of a new system under development. FRA would like to make clear that a verification and validation process is essential to the implementation of any system, whether new or previously certified. The actual application of a technology is just as important as its theoretical performance. In this respect, even railroads that are implementing previously certified and type-approved PTC systems have substantial verification and validation processes and tests to ensure that the system, once installed, functions as designed and intended. Operational data from the existing JRC operation would not suffice in this case. As an example, a technology may be proven to effectively enforce civil speeds ( i.e., speed limits), but if the installation or application design is not correct, the cab signal code or track chart could allow for a maximum authorized speed that is not consistent with the safe civil speed required for a particular curve. Errors such as this are not uncommon when considering the volume of work that must be performed to install a system on hundreds (or thousands) of miles of track, and thus the verification and validation process is critical for the safe implementation of any train control system. In its comments, TCRR further recommended changes to § 299.207(a)(18) to specifically reference the Tokaido Shinkansen system as being the baseline for comparison with TCRR's system. However, the modification is unnecessary for TCRR to reference the Tokaido Shinkansen as the baseline for comparison. As TCRR correctly identified, this requirement is derived from 49 CFR 236.1007(c)(1). FRA believes that, when possible, the RPA and the existing PTC requirements for high-speed service should be consistent. TCRR will be able to comply with § 299.207(a)(18), as the provision permits TCRR to use foreign service data in its PTCSP. FRA is updating the language under § 299.209(e) to directly reference § 236.1029(h). The language of § 299.209(e) as proposed in the NPRM was based on the language of § 236.1029(h), so the requirement to report has not changed. This is consistent with other sections under subpart B. In addition, in its comments, TCRR acknowledges that proposed § 299.211 would establish certain security requirements for a PTC system utilizing wireless communications. Although TCRR does not currently intend for its ATC system to utilize wireless communications, TCRR comments that it does not object to retaining this provision in case it utilizes wireless communications in the future. Accordingly, FRA will retain the language under proposed § 299.211, as it mirrors the existing PTC requirements under § 236.1033. 3. § 299.345 Visual Inspections; Right-of-Way Under § 299.345(b)(3)(i) and (ii), TCRR asked for the inspection frequency to be reduced from twice to once during the relevant period. As proposed, § 299.345(b)(3)(i) and (ii) require TCRR to inspect track within TMFs and MOW yards twice during a 60-day period for ballasted track and twice during a 120-day period for non-ballasted track. TCRR commented that although the rule language as proposed was consistent with the rule text provided with TCRR's petition, it is not wholly consistent with JRC practice. According to TCRR, JRC's practice is to inspect this type of track only once during the relevant periods (a 60-day period for ballasted track and a 120-day period for non-ballasted track). FRA recognizes that the language as proposed under § 299.345(b)(3)(i) and (ii) appears to contain requirements more stringent than what JRC requires on the Tokaido Shinkansen HSR system. Therefore, consistent with FRA and TCRR's goal to replicate JRC's requirements as closely as possible, FRA has made the requested change. 4. § 299.347 Special Inspections TCRR requested in its comments that FRA amend the language of proposed § 299.347. As proposed, § 299.347 contains requirements for TCRR to conduct a special inspection of its track and ROW prior to the operation of a trainset in the event of fire, flood, severe storm, or temperature extremes that could damage the track structure. TCRR pointed out, though, that the language of proposed § 299.347 prohibits movement of a trainset, regardless of location in the ROW ( e.g., between stations), until an inspection has been performed. TCRR also stated that JRC has certain operating rules that would permit movement of a trainset to the next forward station location prior to an inspection so long as specific criteria were met. TCRR offered as an example if operations were suspended due to a heavy rainfall, defined by an amount of rain measured by that segment's rainfall gauge over a specific time interval preceding the trainset movement, a trainset would be allowed to move to the next station at a speed not to exceed 30 km/h (18.6 mph). Accordingly, TCRR requested that FRA amend the language of this section to require inspections of the track and ROW to be performed as soon as possible after the occurrence of a fire, flood, severe storm, temperature extremes, or other types of events that may cause damage to the track structure, in accordance with the railroad's inspection, testing, and maintenance program, and operating rules. FRA agrees that an event may occur while a trainset is en route between stations that would halt the operation of the trainset prior to reaching the next station and trigger a special inspection, as proposed in the NPRM under § 299.347. Because of this, FRA has updated this section in the final rule. FRA has designated the previously undesignated text as paragraph (a) and added a new paragraph (b) to allow a trainset that is between stations to proceed to the next forward station at restricted speed, not to exceed 30 km/h (18.6 mph) after an event contemplated by this section occurs. This allows for the movement of passengers to a station so they are not stranded in the ROW until an inspection of the track and ROW can be performed. However, FRA makes clear that no trainset may depart a station location until a special inspection of the effected track and ROW can be performed. This new paragraph (b) is only to permit the movement of passengers to the next station that would otherwise be stranded between station locations. Should the track and/or ROW be discovered to be damaged so as to put the safety of the passengers in jeopardy, then the movement is expected to stop until the track is inspected by a qualified person, and the qualified person makes a determination that movement can safely proceed. 5. § 299.713 Program Approval Procedures TCRR further requested that FRA amend the language of § 299.713(c)(2) as proposed in the NPRM. As proposed, § 299.713(c)(2) provided the procedures for approval of amendments to the inspection, testing, and maintenance program. Any amendment that relaxes an FRA-approved requirement will be reviewed by FRA within 45 days of receipt of the amendment, by which time FRA will notify TCRR whether the amendment is approved, or if not approved, stating the specific points in which the amendment is deficient. Crucial to this part of the paragraph was that the railroad could not implement the amendment until FRA had approved it. The proposed paragraph further stated that if the railroad wanted to amend the program by making an FRA-approved requirement more stringent, the railroad could implement the amendment prior to receiving FRA approval on the amendment. Although TCRR generally accepted that the language would address many possible amendments, TCRR commented that there may be situations where it is unclear as to whether the proposed inspection, testing, and maintenance program amendment is making an FRA-approved requirement more stringent or relaxed. Thus, TCRR requested FRA change the language of proposed paragraph (c)(2), such that if the railroad proposes to amend an FRA-approved program requirement that TCRR deems to be more stringent, the railroad is permitted to act immediately to implement the amendment prior to obtaining FRA approval. FRA is not adopting TCRR's recommendation because FRA finds the language to be sufficiently clear and expects that most situations, as TCRR has acknowledged, will be straightforward in their resolution. For example, if TCRR wishes to perform inspections more frequently than required in its inspection, testing, and maintenance program, FRA would consider TCRR's proposed action as more stringent than what is required. Conversely, if TCRR wishes to perform inspections less frequently than required in its inspection program, testing, and maintenance program, FRA would consider TCRR's proposed action as less stringent than what is required, and TCRR must have FRA approval before implementing the change. When there is a question as to whether TCRR's proposed action is making a requirement more stringent or relaxed, FRA would expect TCRR to either treat the action as relaxing, triggering FRA review, or to contact FRA to inquire. C. Trainset Image Recording System In the NPRM, FRA proposed to make applicable to TCRR the requirement to have an image recording system installed on its trainsets, consistent with FRA's Locomotive Image and Audio Recording Devices for Passenger Trains NPRM. 66 As discussed in the TCRR NPRM, FRA stated that once the image recording device rulemaking was finalized, that FRA would make conforming changes to this final rule's regulatory text. However, as FRA has not yet published the image recording devices final rule, FRA will make any necessary changes to this regulation as part of that rulemaking. 66 85 FR 14036, 14041; (84 FR 35712, Jul. 24, 2019). D. Decision Under 49 U.S.C. 20306, Exemption for Technological Improvements As discussed in the NPRM, FRA's safety appliance regulation is based on longstanding statutory requirements for individual railroad cars used in general service. These requirements are primarily intended to keep railroad employees safe while performing their essential job functions. Historically, these duties have revolved around the practice of building trains by switching individual cars or groups of cars, and are not directly applicable to how modern high-speed passenger equipment is designed and operated. The application of such appliances would require a significant redesign of HSR equipment, and would create aerodynamic problems, particularly with respect to associated noise emissions. In the NPRM, FRA proposed to exempt TCRR from statutory requirements that are not applicable or practical for inclusion on its high-speed trainset technology, pursuant to the authority granted under 49 U.S.C. 20306. 67 67 85 FR 14036, 14040. Rather than apply legacy requirements that are inappropriate for the proposed equipment's design and service environment, this final rule focuses on how to provide a safe environment for crews as it pertains to the N700 series trainset, and modern high-speed operations throughout the world. In this respect, this final rule defines specific safety appliance performance requirements applicable to this semi-permanently coupled trainset. By focusing on the job functions this approach is expected to: Improve safety for crews and railroad employees; provide flexibility for superior designs based on modern ergonomics; and allow for elimination of appliances when their functionality is moot ( e.g., riding on side sill steps despite an inability to couple/decouple cars). FRA believes it is appropriate to grant relief under the discretionary process established under 49 U.S.C. 20306 and adopts these requirements under its statutory authority as part of this rulemaking. As part of the hearing held on May 4, 2020, FRA conducted proceedings under 49 U.S.C. 20306 to determine whether to invoke its discretionary authority to provide relief to TCRR from certain requirements of 49 U.S.C. ch. 203 for its planned operation of high-speed trainsets built to the requirements contained in this final rule. Under 49 U.S.C. 20306, FRA may exempt TCRR from the above-identified statutory requirements based on evidence received and findings developed at a hearing demonstrating that the statutory requirements “preclude the development or implementation of more efficient railroad transportation equipment or other transportation innovations under existing law.” In its rulemaking petition, TCRR requested FRA exercise its discretionary authority under 49 U.S.C. 20306 to exempt its high-speed passenger rail trainsets from the requirements of 49 U.S.C. 20302, which mandates that railroad vehicles be equipped with: (1) Secure sill steps and efficient hand brakes; (2) secure grab irons or handholds on vehicle ends and sides for greater security to individuals coupling and uncoupling vehicles; and (3) the standard height of drawbars. See 49 U.S.C. 20302(a)(1)(B), (a)(2), and (a)(3). On May 14, 2020, FRA granted similar relief under 49 U.S.C. 20306 to exempt Amtrak's new high-speed passenger rail trainsets, 68 based on evidence presented at a public hearing held on December 11, 2019. TCRR also testified at this hearing in support of Amtrak's petition and noted its pending need for similar technological exemption. FRA notes no substantive differences in the justification for exemption between TCRR and Amtrak, as both requests pertain to the implementation of modern high-speed passenger rail trainsets. FRA believes its exemption for such technology under Amtrak's petition could be extended to any similar high-speed passenger rail trainset technology, but given the unique nature of this rulemaking, and the overlap in timing between TCRR's petition and FRA's decision to grant Amtrak's petition, FRA felt it was appropriate to conduct proceedings under 49 U.S.C. 20306 as part of the hearing held on May 4, 2020. By taking this approach, FRA could ensure transparency and provide ample opportunity for comment from those most affected by the TCRR proposal. 68 See docket FRA-2019-0066. In support of its request for an exemption, TCRR noted in its petition that safety appliances such as sill steps, or end or side handholds, are typically used in conventional North American practice by maintenance personnel who ride the side of trainsets in yards or maintenance facilities for marshalling operations. The N700 series trainset, as described in this final rule, is a fixed-consist trainset where trainset make-up only occurs in defined locations where maintenance personnel can safely climb on, under, or between the equipment, consistent with the protections afforded under 49 CFR part 218. In addition, the leading and trailing ends of the N700 series trainset are equipped with an automatic coupler located behind a removable shroud. These couplers, as proposed by TCRR, will only be used for rescue operations in accordance with TCRR's operating rules, and provide for the safe coupling of one trainset to another ( i.e., each end will have automatic self-centering couplers that couple to other trainsets on impact, and uncouple by mechanisms that do not require a person to go between trainsets or activate a traditional uncoupling lever). Further, as proposed, level boarding will be provided at all locations in trainset maintenance facilities where crew and maintenance personnel are normally required to access or disembark trainsets. Moreover, because the equipment is a fixed-consist trainset in which individual vehicles are semi-permanently coupled and, as noted above, individual vehicles can only be disconnected in repair facilities where personnel can work on, under, or between units under protections consistent with 49 CFR part 218, having drawbars at the statutorily prescribed height is unnecessary. As such, there is not a functional need to equip the ends of the trainsets with sill steps, end or side handholds, or uncoupling levers. As this technology is intended to operate at high-speeds, the inclusion of these appurtenances would have a significant and detrimental impact on the aerodynamics of the trainset. This increase in the aerodynamic footprint would negatively impact both efficiency and aerodynamic noise emissions. TCRR also noted that trainset securement will be provided by the use of wheel chocks in addition to stringent operating rules and procedures, which will be consistent with the service-proven procedures utilized on the Tokaido Shinkansen system. In addition, as proposed in the NPRM, TCRR will be required to demonstrate, as part of its vehicle qualification procedures, that the procedures effectively secure the trainset (see § 299.607). In sum, TCRR asserted that requiring compliance with the identified statutory requirements would serve to preclude the development or implementation of more efficient railroad transportation equipment or other transportation innovations under existing law. During the hearing conducted on May 4, 2020, TCRR provided testimony in support of its exemption request, which reiterated its position stated in its rulemaking petition, which is summarized below. 69 69 See 05.04.2020—TCRR Telephonic Hearing Transcript at page 17-30, available at www.regulations.gov, Docket No. FRA-2019-0068, Document ID: 2019-0068-0291. TCRR testified that, with respect to couplers being able to couple automatically on impact and capable of being uncoupled without the necessity of an individual going between ends of vehicles, that the inter-car connections and coupling mechanisms on TCRR's trainsets are different than those envisioned by 49 U.S.C. 20302(a)(1)(A). TCRR explained that its trainsets can only be separated at a maintenance facility, as the separation of the trainset requires special tools and procedures to safety disconnect the inter-car mechanical and electrical connections. Separation at a maintenance facility also provides railroad employees nee [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2020-20388. Public record. Not legal advice.