1. FRA Jurisdiction Over Commuter Railroads and Rail Transit/Freight Operations Kevin M. Sheys, Partner kevin.sheys@klgates.com K&L Gates, Washington, DC www.klgates.com 2008 South West Transit Association Transit Law Seminar July 20-22, 2008 Santa Fe, NM

2. K&L GATES www.klgates.com Federal Railroad Safety Act Definition: (1) “railroad” - (A)means any form of non-highway ground transportation that runs on rails or electromagnetic guide ways, including - (i) commuter or other short-haul railroad passenger service in a metropolitan or suburban area and commuter railroad service that was operated by the Consolidated Rail Corporation on January 1, 1979; and (ii) high speed ground transportation systems that connect metropolitan areas, without regard to whether those systems use new technologies not associated with traditional railroads; but (B)does not include rapid transit operations in an urban area that are not connected to the general railroad system of transportation. 49 U.S.C. § 20102 (emphasis added)

3. K&L GATES www.klgates.com FRA Jurisdiction FRA has jurisdiction over commuter railroads, regardless of connection to the general railroad system FRA has jurisdiction over rail transit operations if connected to the general railroad system

4. K&L GATES www.klgates.com No FRA Jurisdiction FRA does not have jurisdiction over rail transit operations not connected to the general railroad system

5. K&L GATES www.klgates.com Determining FRA Jurisdiction Logical Order/Approach Q:Is it commuter rail? Y: FRA N:Is it connected to the GRS? Y:FRA N:Not FRA

6. K&L GATES www.klgates.com Step 1: Is It Commuter Rail? FRA Shared Use Policy (49 C.F.R. Part 209, Appendix A) Chicago Transit Authority case Triangle Transit Authority case Determining FRA Jurisdiction (cont’d)

7. K&L GATES www.klgates.com FRA Shared Use Policy Defines Commuter Rail Serves urban area, suburbs and more distant outlying communities in the greater metropolitan area Q: Average trip length? Q: Average distance between stations?

8. K&L GATES www.klgates.com FRA Shared Use Policy Defines Commuter Rail (cont’d) Primary function is moving passengers back and forth between work and homes within the greater metropolitan area Q: What percentage of trips are work and school trips?

9. K&L GATES www.klgates.com FRA Shared Use Policy Defines Commuter Rail (cont’d) Vast bulk of trains operated in morning/evening peak periods A few trains at other hours Q: Percentage of trains in Rush Hour Periods?

10. K&L GATES www.klgates.com FRA Shared Use Policy Defines Commuter Rail (cont’d) Most critical Factor? Absence or presence of riders with trip purpose other than commuter or school

11. K&L GATES www.klgates.com FRA Shared Use Policy Defines Urban Rapid Transit Serves an urban area (and may also serve its suburbs) Q: What is the average trip length? Q: What is the average distance between stations?

12. K&L GATES www.klgates.com FRA Shared Use Policy Defines Urban Rapid Transit (cont’d) Major function is station to station service with multiple station stops within the urban area Q: Various trip purposes, besides work and school trips

13. K&L GATES www.klgates.com FRA Shared Use Policy Defines Urban Rapid Transit (cont’d) Frequent train service even outside morning/evening peak periods Q: What percentage of train starts are in Rush Hour Periods? Q: How much weekend service?

14. K&L GATES www.klgates.com Determining FRA Jurisdiction Step 2: Is it connected to the GRS? What is a “connection”?  FRA shared use policy says must look at nature of connection

15. K&L GATES www.klgates.com Determining FRA Jurisdiction (cont’d) Connection? FRA will construe the word to mean “operating of, or over the lines of, the general system.”

16. K&L GATES www.klgates.com  Easy Cases  Connection –  Shared Track, including freight and passenger window (“Temporal Separation”)  No Connection  Freight track used for delivery of goods or equipment to transit facility Determining FRA Jurisdiction (cont’d)

17. K&L GATES www.klgates.com  Closer Cases  Shared grade crossings  Shared right-of-way (separate track)  Commonly dispatched facilities Determining FRA Jurisdiction (cont’d)

18. K&L GATES www.klgates.com Determining FRA Jurisdiction (cont’d) Modified Order/Approach Q:Is it commuter rail? Y: FRA N:Does it use track on the GRS? Y:FRA N:Does it have a common facility? Y:FRA on facility N:Does it have grade crossings? Y :FRA at grade crossings N :No FRA 

19. K&L GATES www.klgates.com Commuter Rail or Connected Rail- Why do I care about the difference ?  Available waivers – very limited on commuter rail  If Connected Rail – FRA will regulate only to the extent of the connection

20. K&L GATES www.klgates.com Capital Metropolitan Transportation Authority (CMTA) Sought waiver in May, 2006 Based in part on temporal separation

21. K&L GATES www.klgates.com Compare Earlier Series of Waivers to CMTA Waiver Overall, FRA granted most of the waiver requests in prior series of waivers CMTA, FRA denied a signification number of waiver requests

22. K&L GATES www.klgates.com Compare Utah Transit Authority TRAX Waiver to CMTA Waiver Worker/Operations Waivers FRA Regulation:CMTAUTA TRAX Waiver Part 219 Control of Alcohol and Drug UseDeniedGranted Part 225 Accident and Incident ReportingDeniedGranted – Injury Reporting Denied – Accident Reporting Part 239 Passenger Train Emergency PreparednessDeniedGranted Part 240 Qualification and Certification of Locomotive EngineersDeniedGranted

23. K&L GATES www.klgates.com Compare UTA TRAX Waiver to CMTA Waiver (cont’d) Rolling Stock/Vehicle Waivers FRA Regulation:CMTAUTA TRAX Waiver Part 221 Rear End Marking DevicesPending – data requestGranted Part 223 Safety Glazing StandardsGranted – conditionsGranted Part 229 Locomotive Safety Standards Locomotive Identification GrantedN/A Aluminum main reservoirsDenied – refileN/A Clearance above top of railPending – data requestGranted Headlights and auxiliary lightsDenied – refileGranted

24. K&L GATES www.klgates.com Compare UTA TRAX Waiver to CMTA Waiver (cont’d) Rolling Stock/Vehicle Waivers (cont’d) FRA Regulation:CMTAUTA TRAX Waiver Part 231 Safety Appliance StandardsDenied – may not be neededGranted Part 238 Passenger Equipment Safety Standards Fire SafetyDenied – refileN/A Train electronic hardware and software safetyDenied – may not be neededN/A Emergency window exitGranted – data requestGranted Static end strengthGranted – data requestGranted Anti-climbing mechanismGranted – data requestGranted

25. K&L GATES www.klgates.com Compare UTA TRAX Waiver to CMTA Waiver (cont’d) Rolling Stock/Vehicle Waivers (cont’d) FRA Regulation:CMTAUTA TRAX Waiver Part 238 Passenger Equipment Safety Standards (cont’d) Link between coupling mechanism and car body Pending – data requestGranted Forward-facing end structure, collision & corner postsGranted Rollover strength/side structureGranted Truck to car body attachmentGranted, except on truck under center unit N/A Locomotive fuel tanksDenied on main fuel tank N/A Interior fittingsGranted – conditionsGranted

26. K&L GATES www.klgates.com Explanation FRA regulates commuter rails in shared track environments differently than it regulates transit in shared track environments Especially on worker/operations issues FRA has jurisdiction over both, but exercises it differently

27. K&L GATES www.klgates.com Approach/Analysis Know whether your project is commuter rail or rail transit If it is commuter rail, be aware of the compliance issues and the very limited availability of waivers

28. K&L GATES www.klgates.com Approach/Analysis (cont’d) If it is rail transit, know whether it is connected to the general railroad system If it is connected, be aware of the scope of waivers available depending on the nature of the connection and the operating environment

29. K&L GATES www.klgates.com Approach/Analysis (cont’d) If it is rail transit, make sure your entire management team knows the implications of establishing a connection

30. K&L GATES www.klgates.com Approach/Analysis (cont’d) Unless absolutely clear, analyze your facts under the FRA Shared Use Policy and Case Law

31. K&L GATES www.klgates.com References 49 U.S.C. § 20102 49 CFR Part 209, Appendix A and Part 211, Appendix A FRA Shared Use Policy, 65 Fed. Reg. 42529 Utah Transit Authority TRAX Waiver filing and decision – http://www.regulations.gov/fdmspublic/component/main?main=Do cketDetailEd=FRA-1999-6253 http://www.regulations.gov/fdmspublic/component/main?main=Do cketDetailEd=FRA-1999-6253 Capital Metropolitan Transportation Authority waiver filing and decision - http://www.regulations.gov/fdmspublic/component/main?main=Do cketDetailEd=FRA-2006-25040 http://www.regulations.gov/fdmspublic/component/main?main=Do cketDetailEd=FRA-2006-25040

32. K&L GATES www.klgates.com References (cont’d) Chicago Transit Authority v. Flohr, 570 F.2d 1305 (7 th Cir. 1977). Triangle Transit Authority, http://www.fra.dot.gov/downloads/counsel/tritrans.pdf; http://www.klgates.com/files/Publication/496a09c6-4551-433f- 9406- eec8587f478b/Presentation/PublicationAttachment/6a4a9bf0- e56d-405f-974c- 8429fb0ac994/KL%20Transportation%20Alert%20- %20FRA%20Asserts%20Jurisdiction%20- %20February%202003.pdf http://www.fra.dot.gov/downloads/counsel/tritrans.pdf http://www.klgates.com/files/Publication/496a09c6-4551-433f- 9406- eec8587f478b/Presentation/PublicationAttachment/6a4a9bf0- e56d-405f-974c- 8429fb0ac994/KL%20Transportation%20Alert%20- %20FRA%20Asserts%20Jurisdiction%20- %20February%202003.pdf