1. Higher Speed Rail: How Soon? Key Regulatory & Transactional Issues Kevin M. Sheys kevin.sheys@klgates.com

2. 1 Higher Speed Rail: How Soon? Overview  Regulatory Issues  Transaction Issues

3. 2 Higher Speed Rail: How Soon? Regulatory Issues:  Funding  Must Read – High Speed Intercity Passenger Rail Program Notice June 23, 2009. http://www.fra.dot.gov/Downloads/RRDev/fr_hsipr_gu idance.pdf http://www.fra.dot.gov/Downloads/RRDev/fr_hsipr_gu idance.pdf Regulatory Issues:  Funding  Must Read – High Speed Intercity Passenger Rail Program Notice June 23, 2009. http://www.fra.dot.gov/Downloads/RRDev/fr_hsipr_gu idance.pdf http://www.fra.dot.gov/Downloads/RRDev/fr_hsipr_gu idance.pdf

4. 3 Higher Speed Rail: How Soon? Regulatory Issues:  Safety  Convergence of track and passenger equipment standards – systems approach to the interaction between vehicle types and track conditions  Positive train control rule, with performance requirements tiered to speed limits, by the end of October 2009

5. 4 Higher Speed Rail: How Soon? Regulatory Issues:  Safety  Grade crossings – implementation of a policy requiring no at-grade crossings at speeds above 125 mph, full width barriers at speeds above 110 mph and four-quad gates at speeds above 80 mph  Tiered equipment structural standards  Must Read – High-Speed Passenger Rail Safety Strategy: Discussion Draft for Public Outreach July 24, 2009.

6. 5 Higher Speed Rail: How Soon? Transaction Issues:  Public Private Partnerships  Issues are not that different than other transportation projects:  Risk allocation  State laws  Must Read – SNCF Responses to the FRA RFEI on operation of high speed rail in the U.S.

7. 6 Higher Speed Rail: How Soon? Transaction Issues:  Allocation of Tort Liability  In a word? – settled  “But-for” liability on the passenger carrier is standard on all new shared use and shared right of way arrangements

8. 7 Higher Speed Rail: How Soon? Transaction Issues:  Unanticipated Tax Issue  On passenger-freight shared track conventional and emerging service (i.e., with maximum speeds below 110 mph)  Will the freight railroads face tax liability from the massive capital improvements to their property made possible because of ARRA funding?