fra jurisdiction over commuter railroads and rail transit/freight operations kevin m. sheys, partner...

FRA Jurisdiction Over Commuter Railroads and Rail Transit/Freight Operations

Kevin M. Sheys, [email protected]&L Gates, Washington, DCwww.klgates.com

2008 South West Transit AssociationTransit Law SeminarJuly 20-22, 2008Santa Fe, NM

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 railsor 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 systemsuse 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)


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


No FRA Jurisdiction

• FRA does not have jurisdiction over rail transit operations not connected to the general railroad system


Determining FRA Jurisdiction

Logical Order/ApproachQ : Is it commuter rail?

Y: FRAN: Is it connected to

the GRS?Y: FRAN: Not FRA


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)


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?


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?



• Vast bulk of trains operated in morning/evening peak periods

• A few trains at other hours• Q: Percentage of trains in

Rush Hour Periods?



Most critical Factor?• Absence or presence of riders

with trip purpose other than commuter or school


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?


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


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?


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



Connection?FRA will construe the word to mean “operating of, or over the lines of, the general system.”


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



Closer Cases Shared grade crossings Shared right-of-way (separate track)

Commonly dispatched facilities




Modified Order/ApproachQ : Is it commuter rail?

Y: FRAN: Does it use track on the GRS?

Y: FRA N: Does it have a common facility?

Y: FRA on facilityN: Does it have grade crossings?

Y : FRA at grade crossings

N : No FRA


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


Capital Metropolitan Transportation Authority

(CMTA)

• Sought waiver in May, 2006• Based in part on temporal separation


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


Compare Utah Transit Authority TRAX Waiver to CMTA Waiver

• Worker/Operations WaiversFRA Regulation: CMTA UTA TRAX Waiver

Part 219 Control of Alcohol and Drug Use Denied Granted

Part 225 Accident and Incident Reporting Denied Granted – Injury ReportingDenied – Accident Reporting

Part 239 Passenger Train Emergency Preparedness Denied Granted

Part 240 Qualification and Certification of Locomotive Engineers Denied Granted


Compare UTA TRAX Waiver to CMTA Waiver (cont’d)

• Rolling Stock/Vehicle WaiversFRA Regulation: CMTA UTA TRAX Waiver

Part 221 Rear End Marking Devices Pending – data request Granted

Part 223 Safety Glazing Standards Granted – conditions Granted

Part 229 Locomotive Safety StandardsLocomotive Identification

Granted N/A

Aluminum main reservoirs Denied – refile N/A

Clearance above top of rail Pending – data request Granted

Headlights and auxiliary lights Denied – refile Granted



• Rolling Stock/Vehicle Waivers (cont’d)FRA Regulation: CMTA UTA TRAX Waiver

Part 231 Safety Appliance Standards Denied – may not be needed Granted

Part 238 Passenger Equipment Safety StandardsFire Safety Denied – refile N/A

Train electronic hardware and software safety Denied – may not be needed N/A

Emergency window exit Granted – data request Granted

Static end strength Granted – data request Granted

Anti-climbing mechanism Granted – data request Granted



• Rolling Stock/Vehicle Waivers (cont’d)FRA Regulation: CMTA UTA TRAX Waiver

Part 238 Passenger Equipment Safety Standards (cont’d)Link between coupling mechanism and car body Pending – data request Granted

Forward-facing end structure, collision & corner posts Granted Granted

Rollover strength/side structure Granted Granted

Truck to car body attachment Granted, except on truck under center unit

N/A

Locomotive fuel tanks Denied on main fuel tank

N/A

Interior fittings Granted – conditions Granted


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


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


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



• If it is rail transit, make sure your entire management team knows the implications of establishing a connection



• Unless absolutely clear, analyze your facts under the FRA Shared Use Policy and Case Law


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=DocketDetailEd=FRA-1999-6253

• Capital Metropolitan Transportation Authority waiver filing and decision - http://www.regulations.gov/fdmspublic/component/main?main=DocketDetailEd=FRA-2006-25040


References (cont’d)

• Chicago Transit Authority v. Flohr, 570 F.2d 1305 (7th 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

fra jurisdiction over commuter railroads and rail transit/freight operations kevin m. sheys, partner...

Documents

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