Proposed Statement of Agency Policy Concerning Jurisdiction Over the Safety of Railroad Operations

SUMMARY: The Federal Railroad Administration (FRA) and the Federal

Transit Administration are jointly developing a policy concerning

safety issues related to light rail transit operations taking place on

the general railroad system. That policy will describe how the two

agencies will coordinate use of their respective safety authorities

over shared use operations. FRA is issuing this proposed policy

statement to describe the extent of its statutory jurisdiction over

railroad passenger operations (which covers all railroads except urban

rapid transit operations not connected to the general railroad system)

and explain how it will exercise that jurisdiction. The proposal also

explains FRA's waiver process and discusses factors that should be

addressed in any petition submitted by light rail operators and other

railroads seeking approval of shared use of the general railroad

system.

FRA is not required by law to provide notice and opportunity for

comment on a statement of policy. However, given the number of shared

use operations being planned around the nation and the level of

interest in how the safety of those operations will be assured, the

agency concluded that it could benefit from receiving comments before

drafting its policy in final. FRA does not plan to hold a hearing, but

will discuss the proposed statement with interested groups.

DATES: Submit written comments on this document on or before January

14, 2000.

ADDRESSES: Procedures for written comments: Submit one copy to the

Department of Transportation Central Docket Management Facility located

in room PL-401 at the Plaza level of the Nassif Building, 400 Seventh

Street, S.W., Washington, D.C. 20590. All docket material on the

proposed statement will be available for inspection at this address and

on the Internet at http://doms.dot.gov. (Docket hours at the Nassif

Building are Monday-Friday, 10 a.m. to 5 p.m., excluding Federal

holidays.) Persons desiring notification that their comments have been

received should submit a stamped, self-addressed postcard with their

comments. The postcard will be returned to the addressee with a

notation of the date on which the comments were received.

FOR FURTHER INFORMATION CONTACT: Daniel C. Smith, Assistant Chief

Counsel for Safety, FRA, RCC-10, 1120 Vermont Avenue, N.W., Mail Stop

10, Washington, D.C. 20590 (telephone: 202-493-6029) or David H.

Kasminoff, Trial Attorney, FRA, RCC'12, 1120 Vermont Avenue, N.W., Mail

Stop 10, Washington, D.C. 20590 (telephone: 202-493-6043).

Proposed Statement of Agency Policy Concerning Jurisdiction Over

the Safety of Railroad Passenger Operations

Introduction

In many areas of the United States, local communities are planning

or developing passenger operations that will operate over the lines of

new or existing railroads. Many of the new operations will use rail

equipment commonly referred to as ``light rail'' due to its generally

lighter construction than equipment ordinarily used by freight and most

passenger railroads. Some of these light rail operations will operate

over lines also used by conventional freight and passenger railroads.

The Department of Transportation (DOT) fully supports the

development of railroad passenger operations as an important means of

expanding transportation services in this country as we enter the new

millennium, without adding additional congestion to the nation's

crowded highways and airports. DOT's Federal Transit Administration

(FTA) will play a critical role in financing many of these new and

expanded rail systems.

DOT's most important mission is ensuring safe transportation. DOT's

Federal Railroad Administration (FRA) has primary responsibility for

the safety of railroad passenger operations. Consistent with FRA's

safety role, in a final rule published in the Federal Register on

December 27, 1995, FTA announced that it would begin requiring states

to oversee the safety of rail fixed guideways systems not regulated by

FRA. 60 FR 67034; see 49 U.S.C. 5530, 49 CFR part 659. Under its

statutory scheme, FTA does not directly enforce safety statutes or

regulations against rail fixed guideway systems, nor does FTA have

safety inspectors who enter upon the regulated properties to perform

inspections.

On May 25, 1999, FRA and FTA published a ``Proposed Joint Statement

of Agency Policy Concerning Shared Use of the General Railroad System

by Conventional Railroads and Light Rail Transit Systems'' (Proposed

Joint Policy Statement), in which the two agencies explained how they

intend to coordinate use of their respective safety authorities with

regard to shared use operations. 64 FR 28238. The document also

summarized how the process of obtaining waivers of FRA's safety

regulations may work, especially where the light rail and conventional

rail operations occur at different times of day. As discussed in the

Proposed Joint Policy Statement, FRA is now issuing this proposed

statement of agency policy concerning its safety jurisdiction over

railroad passenger operations in order to provide ``a thorough

discussion of the extent and exercise of [its] jurisdiction and

guidance on which of FRA's safety rules are likely to apply in

particular operational situations.'' 64 FR at 28239. Because the

proposed joint FRA/FTA statement provided some guidance on FRA's waiver

process and this proposed statement amplifies that guidance, the two

statements overlap somewhat and to some degree are repetitious.

However, when final statements are issued, the guidance on the FRA

waiver process will be found in FRA's statement, and the joint

statement will focus only on the two agencies' plans for coordination

of their respective authorities. The joint policy statement and FRA's

separate statement are being handled under the same docket number, and

the same comment deadline (January 14, 2000) applies to both, so there

is no need for commenters to file duplicative comments. Comments can

focus on both proposed statements. (The comment period on the joint

policy statement was extended further to January 14, 2000 in Notice No.

3 so that the comment periods for both notices would coincide.)

Purpose of FRA's Separate Statement

The current proliferation of railroad passenger operations,

especially those involving shared use of trackage by a conventional

railroad and a light rail operator, creates a need for FRA to clarify

the extent to which it will exercise its jurisdiction over those

operations. As explained below, FRA's safety jurisdiction is very broad

and extends to all entities that can be construed as railroads by

virtue of their providing non-highway ground transportation over rails

or

[[Page 59047]]

electromagnetic guideways (and will extend to future railroads using

other technologies not yet in use), but excludes urban rapid transit

operations not connected to the general railroad system. While FRA

believes its safety jurisdiction extends to nearly the entire universe

of railroads, for reasons of policy it sometimes chooses not to

exercise its authority over certain types of operations. For example,

because of the limitations on its inspection resources and its

assessment of the practical limitations of its role, FRA does not

currently exercise its jurisdiction over railroads whose operations are

confined to the boundaries of an industrial plant or over insular

tourist operations.

FRA's issuance of final rules on passenger train emergency

preparedness (63 FR 24630, May 4, 1998) and passenger equipment safety

standards (64 FR 25540, May 12, 1999) makes it all the more timely for

FRA to provide clarification on how it exercises its jurisdiction. This

clarification will help the developers and operators of passenger

systems plan their activities accordingly. As set forth in the text of

the applicability sections to FRA's regulations (e.g., 49 CFR 239.3),

all of FRA's regulations already apply under their own terms to

passenger operations on the general railroad system of transportation;

this proposed policy statement does not alter any of those

requirements, but rather explains the ramifications of FRA's

regulations for the various kinds of railroad passenger operations.

Also, this proposed statement offers further explanation of FRA's

waiver process and how FRA is likely to respond to waiver petitions

under certain circumstances.

While passenger railroads offer the traveling public one of the

safest forms of transportation available, passenger trains are exposed

to a variety of safety hazards. Some of these hazards are endemic to

the nation's rail passenger operating environment, involving the

operation of passenger trains commingled with freight trains, often

over track with frequent grade crossings used by heavy highway

equipment. Collisions with a wide range of objects may occur at various

speeds under a number of different circumstances. In addition to

freight trains and highway vehicles, these objects include maintenance-

of-way equipment and other passenger trains. Although most of these

collisions occur at the front or rear of the train, impact into the

side of the train can occur, especially at the junction of rail lines

and at highway-rail grade crossings. The possibility of a passenger

train collision with another train or a highway vehicle greatly

concerns FRA because of the potential for significant harm, as

demonstrated by actual accidents.

For example, on February 9, 1996, a near head-on collision occurred

between two New Jersey Transit Rail Operations, Inc. trains on the

borderline of Secaucus and Jersey City, New Jersey. Two crewmembers and

one passenger were fatally injured, and 35 other individuals sustained

injuries. The passenger fatality and most of the nonfatal injuries to

passengers occurred on a train that was operating with the cab car (a

car which provides passenger seating, as well as a location from which

the train is operated) at the front of the train, followed by four

passenger coaches and a locomotive pushing the train consist. (FRA

Accident Investigation Report B-2-96.)

One week later, on February 16, 1996, a near-head-on collision

occurred between a Maryland Rail Commuter Service (MARC) train and an

Amtrak train on track owned by CSX Transportation, Inc. (CSXT) at

Silver Spring, Maryland. The MARC train was operating with a cab car as

the lead car in the train, followed by two passenger coaches and a

locomotive pushing the consist. The collision separated the left front

corner of the cab car from the roof to its sill plate, and tore off

much of the forward left side of the car body. Three crewmembers and

eight passengers were fatally injured, and 13 occupants of the MARC

train sustained injuries. (FRA Accident Investigation Report B-3-96.)

On March 15, 1999, a southbound Amtrak train traveling 79 miles per

hour and operating from Chicago, Illinois, to New Orleans, Louisiana,

struck a flatbed semi-tractor trailer in Bourbonnais, Illinois, while

the truck was occupying a highway-rail grade crossing. Due to the

impact, two locomotives and 11 of the 14 cars in the train derailed.

The train had continued upright until reaching a switch leading into a

siding, where it struck two freight cars parked on the adjacent siding

west of the main track. The nearest car was a gondola car loaded with

steel bars and angle iron, and the second car was a covered hopper

loaded with smoke stack emission fly ash. These cars were also

derailed, destroying the gondola. The first six passenger cars of the

Amtrak train piled up along with the tenth car, a coach. Of those cars,

only the second car (a transition sleeper) was not destroyed. Fire from

ruptured locomotive fuel tanks broke out, gutting the interior of the

third car, a sleeping car. All but the last three cars derailed. The

derailment and fire resulted in the deaths of 11 passengers, all of

whom were located in the sleeping car, and injuries to 122 other

passengers. (FRA Accident Investigation Report B-02-99.)

While none of these accidents involved light rail equipment, the

accidents all illustrate the risks to passengers and crew presented by

operations on the general railroad system. Those risks are at least as

great where light rail equipment is used, especially if any potential

exists for a collision with substantially heavier and structurally

stronger conventional trains.

FRA's Legal Authority Over Railroad Safety

The Statutory Definition of ``Railroad''

By delegation from the Secretary of Transportation, FRA administers

the Federal railroad safety statutes that are codified at 49 U.S.C.

20101 through 21311 (chapters 201 through 213 of Title 49 of the United

States Code) and also exercises enforcement authority in the rail mode

under the hazardous materials transportation laws (49 U.S.C. Chapter

51). Under the railroad safety statutes, ``railroad'' is defined as

follows:

In this part--

(1) ``railroad''--

(A) means any form of nonhighway ground transportation that runs

on rails or electromagnetic guideways, 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.

(2) ``railroad carrier'' means a person providing railroad

transportation.

49 U.S.C. 20102.

This definition, added by the Rail Safety Improvement Act of 1988

(``1988 Safety Act'') Pub. L. No. 100-342, makes certain elements of

FRA's safety jurisdiction quite clear:

FRA, with one exception, has jurisdiction over any type of

railroad regardless of the kind of equipment it uses, its connection to

the general railroad system of transportation, or its status as a

common carrier engaged in interstate commerce.

Commuter and other short-haul railroad passenger

operations in a metropolitan or suburban area (except for one type of

short-haul operation, i.e., urban rapid transit) are railroads within

FRA's jurisdiction whether or not they

[[Page 59048]]

are connected to the general railroad system.

Rapid transit operations in an urban area that are not

connected to the general railroad system are not within FRA's

jurisdiction. This is the sole exception to FRA's jurisdiction over

railroads. There is no exception for ``light rail,'' a term not found

in the statute.

Rapid transit operations in an urban area that are

connected to the general railroad system of transportation are within

FRA's jurisdiction.

The statutory definition, however, also leaves some important

questions unanswered. The statute does not provide a definition of

either ``commuter or other short-haul railroad passenger service'' or

``rapid transit operations in an urban area.'' The statute does not

state clearly whether urban rapid transit is a sub-category of ``other

short-haul'' service or is a completely separate category. The statute

distinguishes commuter from rapid transit service, but does not provide

the characteristics of each or indicate whether the two types of

service share some characteristics. The statute does not define

``connected to'' but makes connection the critical issue in determining

whether rapid transit operations are within FRA's jurisdiction. Nor

does the statute define ``the general railroad system of

transportation,'' another critical element in determining whether urban

rapid transit operations are covered.

These unanswered questions are not academic. For example, if

``commuter'' and ``rapid transit'' were defined in the statute,

distinguishing between the two types of service would be easier, and

FRA would merely have to determine if there is a connection to the

general railroad system in order to know if it had jurisdiction.

However, it is possible for a railroad system in a metropolitan area to

have characteristics of both commuter rail and rapid transit. In those

cases, assuming there is no clear connection to the general system,

what criteria should FRA use to determine whether it has jurisdiction

and, if it does, whether to assert it? A brief review of the

legislative history of the definition of the term ``railroad'' helps to

provide some answers.

Legislative History of Definition of ``Railroad'

Prior to 1970, FRA administered a variety of railroad safety

statutes that applied only to common carriers engaged in interstate or

foreign commerce by rail. For example, FRA administered the Safety

Appliance Acts, formerly 45 U.S.C. 1-16 (1982), now 49 U.S.C. 20301-

20306. However, in 1970, Congress determined that there was a need for

more comprehensive and uniform safety regulations in all areas of

railroad operations and concluded that FRA needed to reach beyond

common carriers to other types of railroads. Congress enacted the

Federal Railroad Safety Act of 1970 (``FRSA''), Pub. L. No. 91-458,

which (at Sec. 202(a)) gave FRA authority to regulate ``all areas of

railroad safety,'' and conferred all powers necessary to detect and

penalize violations of any rail safety law. Although that statute did

not define the word ``railroad,'' its legislative history made clear

the breadth that Congress intended the word to convey. For example, the

House Committee on Interstate and Foreign Commerce stated:

The Secretary's authority to regulate extends to all areas of

railroad safety. This legislation is intended to encompass all those

means of rail transportation as are commonly included within the

term. Thus ``railroad'' is not limited to the confines of ``common

carrier by railroad'' as that language is used in the Interstate

Commerce Act.

H.R. Rep. No. 91-1194, 91st Cong., 2d Sess. at 16 (1970). Congress

clearly expected that this expanded jurisdiction would reach commuter

and other short-haul passenger operations. The House Committee report

stated: ``the Secretary's jurisdiction would extend to rail operations

in areas presently governed by compacts and other municipal authorities

such as the Metropolitan Transit Authority in New York.'' Id.

FRA attempted to administer this broad mandate literally until the

Chicago Transit Authority (CTA) successfully challenged FRA's assertion

of jurisdiction over its rapid transit operations in 1977. In Chicago

Transit Authority v. Flohr (``CTA''), 570 F.2d 1305 (7th Cir. 1977),

the Seventh Circuit held that Congress did not intend the word

``railroad'' to apply to ``urban rapid transit'' such as CTA's. The

court noted, in pertinent part, that:

The CTA's rapid transit equipment consists of electrically self-

powered units, substantially smaller and lighter than railroad cars;

CTA rapid transit cars do not use the rails of any [conventional]

railroad nor conversely, can [conventional] railroads use the CTA

rails.

Id. at 1307.

The CTA decision did not address FRA's jurisdiction over commuter

operations, and left FRA with little guidance about precisely what

systems were outside of its jurisdiction. In 1982, FRA expressed to

Congress a degree of doubt about the extent of its safety jurisdiction,

particularly over a commuter line (Fox Chase-Newtown) operated by the

Southeastern Pennsylvania Transportation Authority (SEPTA). Congress

responded by including in the Rail Safety and Service Improvement Act

of 1982 (``1982 Safety Act''), Pub. L. No. 97-468, a provision that

made very clear its intention that FRA assert jurisdiction over

commuter operations. Section 702(c) of that act stated that ``all areas

of railroad safety'' in the FRSA includes ``the safety of commuter or

other short-haul rail passenger service in a metropolitan or suburban

area, including any commuter rail service which was operated by the

Consolidated Rail Corporation as of January 1, 1979.'' The House

Committee explained its intention as follows:

This amendment is merely designed to clarify that commuter rail

operations, such as the Fox Chase-Newtown line, are indeed subject

to the FRSA. This clarification of FRA's jurisdiction specifically

includes service operated by a common carrier by railroad or a

successor operator (such as a commuter agency), but excludes rail

service operated by street railways or rapid transit systems unless

they are operated as a part of, or over the lines of, the general

system of rail transportation.

H.R. Rep. No. 97-571, 97th Cong., 2d Sess. at 41-42 (1982). The report

went on to note that ``this amendment does not extend FRSA jurisdiction

to rail rapid transit operations such as subways or trolley lines.''

Id.

After enactment of the 1982 Safety Act, therefore, it was clear

that Congress expected FRA to assert jurisdiction over commuter

operations but not over rapid transit operations unless they were

connected to the general railroad system, i.e., operated as a part of,

or over the lines of, that system. Rather than overturn CTA and direct

FRA to assert authority over stand-alone rapid transit lines, Congress

incorporated the basic holding of that court decision by excluding

rapid transit operations that, like CTA's, did not share any trackage

with the general railroad system. Although the commuter/rapid transit

line was not clearly drawn, FRA knew from the legislative history that

street railways, subways, and trolley lines were the kinds of

operations Congress considered to be rail rapid transit. However,

Congress did not incorporate the CTA court's distinctions about the

jurisdictional relevance of types of equipment; rather, Congress

clearly conferred jurisdiction even over trolleys and street railways

if they were connected to the general system by virtue of operating as

a part of, or over the lines of, that system.

In 1986, FRA became concerned that there could be confusion about

whether

[[Page 59049]]

its jurisdiction would extend to certain high speed transportation

systems that were being contemplated. Some would-be stand-alone systems

having only incidental connections with other railroads for the

delivery of cars and equipment, and others would use technologies

(e.g., magnetic levitation) not among those traditionally used by a

railroad. Jurisdictional confusion could impede the development of such

systems. FRA drafted proposed legislation to eliminate any potential

confusion.

In February 1987, the Secretary of Transportation submitted to

Congress the proposed rail safety reauthorization legislation that FRA

had recommended and drafted. That bill included a provision that would

define ``railroad'' in the FRSA to include all forms of nonhighway

ground transportation except urban rapid transit operations not

connected to the general railroad system. Commuter and other short-haul

passenger operations in a metropolitan or suburban area would continue

to be included. High speed systems would be included even if they used

technologies (such as magnetic levitation) not traditionally associated

with railroads. This provision, which provided the first definition in

the railroad safety statutes of the term ``railroad,'' incorporated the

1982 Safety Act text on commuter and other short-haul systems and the

1982 legislative history on urban rapid transit. With regard to rapid

transit, the bill used the phrase ``connected to'' the general system

as an abbreviated substitute for the 1982 legislative history's

direction to exclude rapid transit systems unless ``operated as a part

of, or over the lines of, the general system of rail transportation.''

H.R. Rep. No. 97-571, 97th Cong., 2d Sess. at 41-42 (1982). The

provision made clear that a connection to the general system was

relevant only in determining whether an urban rapid transit operation

was within FRA's jurisdiction. The bill also made clear that, in the

safety statutes, ``railroad'' was not confined to any traditional

definition of the term that limited it to certain types of technology

and equipment.

With only immaterial changes, Congress enacted the provision

drafted and recommended by FRA in the1988 Safety Act. This is the

current definition of ``railroad'' codified at 49 U.S.C. 20102, set

forth above. The Conference Report accompanying the 1988 Safety Act

stated that the definition of ``railroad'' was intended to clarify the

Secretary's jurisdiction in the rail safety area. See H.R. Rep. No.

100-637, 100th Cong., 2d Sess. at 24 (1988). The Senate Report noted

that, in addition to ensuring FRA's jurisdiction over high speed rail

systems and emerging technologies, the provision incorporates the 1982

language concerning commuter and other short-haul passenger service.

Sen. Rep. No. 100-153, 100th Cong., 2d Sess. at 13 (1988). Shortly

after passage of the 1988 Safety Act, FRA issued a statement of agency

policy and interpretation, found at 49 C.F.R. Part 209, Appendix A.

That statement of policy included a brief explanation of the extent and

exercise of FRA's safety jurisdiction in light of the statutory

amendments, noting that the only exception to that jurisdiction was for

``self-contained urban rapid-transit systems.'' Id.

FRA's Policy on the Exercise of Its Safety Jurisdiction

FRA distinguishes between the extent of its statutory jurisdiction

(i.e., the furthest reach of its authority under the safety laws, which

cover all railroads except urban rapid transit operations not connected

to the general system) and its exercise of that jurisdiction (the

degree to which it asserts its jurisdiction). See 49 CFR part 209,

Appendix A. FRA believes that, based on its resource limitations and

the relative degree of safety risk posed by certain operations, it

makes sense in some situations to limit the exercise of its

jurisdiction to something less than the entire universe of railroads

that could be regulated. Thus, many of its regulations exclude

operations not connected to the general railroad system, and its

policies exclude certain other operations (such as insular tourist

operations). However, nothing precludes FRA from subsequently expanding

the reach of a regulation or policy to the maximum extent permitted by

statute, or from using its emergency authority under 49 U.S.C. 20104 at

any time to address imminent hazards involving death or personal injury

arising in operations otherwise excluded from its exercise of

jurisdiction.

FRA currently exercises jurisdiction over all railroad passenger

operations in the nation except: (1) Urban rapid transit operations not

operated on or over the general railroad system; and (2) tourist,

scenic, or excursion operations that are not operated on or over the

general system and are insular. Thus, in addition to intercity

passenger service, FRA exercises jurisdiction over all commuter

operations (whether or not connected to other railroads in the general

system), all tourist operations operated on or over the general system

and those off the general system that are not insular, and all other

passenger operations that are operated on or over the general system.

FRA will assert jurisdiction over high speed intercity rail service

even if completely separated from the general railroad system that now

exists and magnetic levitation systems that are not urban rapid

transit.

Some current and planned passenger operations in metropolitan areas

are often referred to as ``light rail.'' In the transit industry, this

term usually refers to lightweight passenger cars operating on rails in

a right-of-way that is not separated from other traffic, such as street

railways and trolleys. ``Heavy rail'' generally refers to cars

operating on rails that are in separate rights-of-way from which all

other vehicular traffic is excluded. In transit terms, heavy rail is

also known as ``rapid rail,'' ``subway,'' or ``elevated railway.''

Conventional rail equipment such as that used by freight railroads,

Amtrak, and many commuter railroads is different from, and considerably

heavier and structurally stronger than, either light or heavy rail

equipment, as those terms are used in the transit industry. Although

this equipment is sometimes referred to as ``heavy'' rail, we will use

the term ``conventional'' to avoid confusion between the different ways

``heavy'' is used in the transit and general railroad communities. The

greatest risk inherent in the shared use of the trackage is a collision

between the light rail equipment and conventional equipment. The light

rail vehicles are not designed to withstand such a collision with far

heavier equipment. Were such a crash to occur with either or both

trains operating at high speeds, the results for passengers in the

light rail vehicle could be catastrophic. (Mixing of heavy rail transit

and conventional railroad operations is not likely, but would present

most of the same concerns associated with light rail. Those concerns

could be more or less acute, depending on operating speeds and other

factors. Although heavy rail transit is not directly addressed in this

notice, FRA would expect to apply similar principles to such a shared

use situation.)

Rapid transit operations may involve use of either light or heavy

transit equipment. However, it is the nature and location of the

operation, not the nature of the equipment, that determines whether FRA

has jurisdiction under the safety statutes. The sole statutory

exception is for ``rapid transit operations in an urban area that are

not connected to the general railroad system of transportation.'' 49

U.S.C. 20102. The first jurisdictional question is whether the

operations are in the nature of rapid

[[Page 59050]]

transit. If the operation is a commuter railroad, FRA has jurisdiction

regardless of its connection to other railroads, and in fact considers

the operation itself to be part of the general railroad system. To

assist in making these determinations, FRA has devised definitions of

``commuter'' and ``rapid transit'' operations, which are set forth

below in the proposed revision to its statement of policy in 49 CFR

part 209, appendix A. If the operation is rapid transit, the next

question is whether it is connected to the general railroad system. If

so, FRA has jurisdiction despite the rapid transit nature of the

system. As explained fully below, however, in the revisions to its

published statement of policy, FRA considers some connections to the

general system to be insufficient to warrant exercise of its

jurisdiction over a transit operation. Moreover, FRA intends to

exercise jurisdiction over a transit operation that does have

significant connections to the general system only to the extent it is

connected, not over the entire transit system.

Only two light rail operations (in San Diego and Baltimore)

currently share trackage with conventional equipment. In exercising

jurisdiction over these lines jointly used by light rail and a freight

railroad, FRA has made specific accommodations for the differences in

equipment and operations that distinguish these systems from more

conventional intercity or commuter operations. We have generally

addressed these joint use arrangements by exercising jurisdiction over

just those elements of the system also used by the freight line, such

as the track, signals, grade crossing warning devices, and dispatching.

The leading example is the San Diego Trolley line. FRA has not actively

exercised jurisdiction over the time-separated passenger operations on

the freight line or over any aspects of the trolley's operation on its

separate street trackage. There, the fact that the passenger operations

are completely separated in time from the limited period during which

freight operations occur was very persuasive in FRA's policy

determination not to exercise its jurisdiction more aggressively.

Of course, most of FRA's regulations apply on their face to all

railroads that operate on the general railroad system (as do the light

rail lines in San Diego and Baltimore). In the absence of a waiver,

these rules technically apply. As a policy matter, FRA has decided, up

to this point, not to insist on the filing of waiver applications for

the time-separated light rail operations. However, various factors call

for a more clearly defined policy with regard to light rail operations

on the general system. First, the number of such operations being

planned is increasing quickly across the nation. The informal

arrangements currently in place for the two current operations will not

suffice for a wide variety of light rail operations in many locations.

Second, FRA's recent issuance of two rules (passenger train

emergency preparedness and passenger equipment) dealing directly with

passenger operations makes it imperative that all current or planned

passenger operations to which those rules would apply have a plan for

either complying with the rules or seeking a waiver from them. For

example, in issuing its passenger equipment rules (49 CFR part 238) in

May 1999, FRA made clear that they will apply to light rail operations

on the general system, encouraged the filing of waiver applications as

early as possible, and noted that the two light rail shared use

operations currently in existence were covered by the rule, subject to

an appropriate period of consultation and adjustment. 64 FR 25543-

25544. It is clear that light rail equipment will not meet many of the

passenger equipment standards, such as the 800,000 pound buff strength

requirement. In that regard, FRA stated: ``Light rail operators will

have to seek a waiver of the requirement and will have to plan their

operations in such a way as to maximize the likelihood of obtaining

such a waiver.'' Id. at 25545.

Finally, from the point of view of regulatory compliance at the

Federal and State levels, rail transit operators can presumably benefit

from a comprehensive summary of what standards and procedures apply.

This will assist in governing current conduct as well as aiding

planners of such operations.

FRA's existing published statement of agency policy (49 CFR part

209, Appendix A) does not address light rail operations on the general

system. Revising that published statement will provide timely guidance,

especially in light of the number of joint use passenger/freight

operations currently under development or being contemplated. The

proposed changes to Appendix A are shown at the end of this document.

Waiver Petitions Concerning Shared Use of the General System by Light

Rail and Other Railroads

Light rail operators who intend to share use of the general

railroad system with conventional equipment will either have to comply

with FRA's safety rules or obtain a waiver of appropriate rules. By

statute, FRA may grant a waiver of any rule or order if the waiver ``is

in the public interest and consistent with railroad safety.'' 49 U.S.C.

20103(d). Waiver petitions are reviewed by FRA's Railroad Safety Board

(the ``Safety Board'') under the provisions of 49 CFR Part 211. Waiver

petitions must contain the information required by 49 CFR 211.9. The

Safety Board can, in granting a waiver, impose any conditions it

concludes are necessary to assure safety or are in the public interest.

If the conditions under which the waiver was granted change

substantially, or unanticipated safety issues arise, FRA may modify or

withdraw a waiver in order to ensure safety.

FRA asks that the light rail operator and all other affected

railroads jointly file a Petition for Approval of Shared Use. Like all

waiver petitions, a Petition for Approval of Shared Use will be

reviewed by the Safety Board. FTA will appoint a non-voting liaison to

the Safety Board, and that person will participate in the Safety

Board's consideration of all such petitions. This close cooperation

between the two agencies will ensure that FRA benefits from the

insights, particularly with regard to operational and financial issues,

that FTA can provide about light rail operations, as well as from FTA's

knowledge of and contacts with state safety oversight programs. This

working relationship will also ensure that FTA has a fuller

appreciation of the safety issues involved in each specific shared use

operation and a voice in shaping the safety requirements that will

apply to such operations.

In general, the greater the safety risks inherent in a proposed

operation the greater will be the mitigation measures required. It is

the intention of FTA and FRA to maintain the level of safety typical of

conventional rail passenger operations while accommodating the

character and needs of light rail transit operations.

General Factors To Address in a Petition for Approval of Shared Use

FRA resolves each waiver request on its own merits based on the

information presented and the agency's own investigation of the issues.

While FRA cannot state in advance what kinds of waivers will be granted

or denied, we can provide guidance to those who may likely be

requesting waivers to help ensure that their petitions address factors

that FRA will no doubt consider important.

FRA's procedural rules give a general description of what any

waiver petition should contain, including an explanation of the nature

and extent of

[[Page 59051]]

the relief sought; a description of the persons, equipment,

installations, and locations to be covered by the waiver; an evaluation

of expected costs and benefits; and relevant safety data. 49 CFR 211.9.

The procedural rules, of course, are not specifically tailored to

situations involving light rail operations over the general system,

where waiver petitions are likely to involve many of FRA's regulatory

areas. In such situations, FRA suggests that a Petition for Approval of

Shared Use address the following general factors.

Description of operations. Explain the frequency and speeds of all

operations on the line and the nature of the different operations.

Explain the nature of any connections between the light rail and

conventional operations.

If the light rail line will operate on any segments that

are not part of the general railroad system (e.g., a street railway

portion), describe those segments and their connection with the general

system segments. In such situations, explain, using the criteria of

this statement of policy, whether the light rail operation is, in the

petitioner's view, a commuter operation or urban rapid transit. The

petition need not address the commuter/rapid transit issue if the light

rail operations will be conducted entirely as part of or over the lines

of the general system.

If the light rail and conventional operations will share

any trackage, describe precisely what the respective hours of operation

will be for each type of equipment. If light rail and conventional

operations will occur only at different times of day, describe what

means of protection will ensure that the different types of equipment

are not operated simultaneously on the same track, and how protection

will be provided to ensure that, where one set of operations begins and

the other ends, there can be no overlap that would possibly result in a

collision.

If the light rail and conventional operations will share

trackage during the same time periods, the petitioners will face a

steep burden of demonstrating that extraordinary safety measures will

be taken to adequately reduce the likelihood and/or severity of a

collision between conventional and light rail equipment to the point

where the safety risks associated with joint use would be acceptable.

Explain the nature of such simultaneous joint use. Describe the system

of train control, the frequency and proximity of both types of

operations, and all methods that would be used to prevent collisions.

Include a quantitative risk assessment concerning the risk of collision

between the light rail and conventional equipment under the proposed

operating scenario.

Description of Equipment. Describe all equipment that will be used

by the light rail and conventional operations. Where the light rail

equipment does not meet the standards of 49 CFR part 238, provide

specifics on the crash survivability of the light rail equipment, such

as static end strength, sill height, strength of corner posts and

collision posts, side strength, etc.

Given the structural incompatibility of light rail and conventional

equipment, FRA has grave concerns about the prospect of operating these

two types of equipment simultaneously on the same track. If the light

rail and conventional operations will share trackage during the same

time periods, provide an engineering analysis of the light rail

equipment's resistance to damage in various types of collisions,

including a worst case scenario involving a failure of the collision

avoidance systems resulting in a collision between light rail and

conventional equipment at track speeds.

Alternative safety measures to be employed in place of each rule

for which waiver is sought. The petition should specify exactly which

rules the petitioner desires to be waived. For each rule, the petition

should explain exactly how a level of safety at least equal to that

afforded by the FRA rule will be provided by the alternative measures

the petitioner proposes.

Most light rail operations that entail some shared use of the

general system will also have segments that are not on the general

system. FTA's rules on rail fixed guideway systems will probably apply

to those other segments. If so, the petition for waiver of FRA's rules

should explain how the system safety program plan adopted under FTA's

rules may affect safety on the portions of the system where FRA's rules

apply. Under certain circumstances, effective implementation of such a

plan may provide FRA sufficient assurance that adequate measures are in

place to warrant waiver of certain FRA rules. In its petition, the

light rail operator may want to certify that the subject matter

addressed by the rule to be waived is addressed by the system safety

plan and that the light rail operation will be monitored by the state

safety oversight program. That is likely to expedite FRA's processing

of the petition. FRA will analyze information submitted by the

petitioner to demonstrate that a safety matter is addressed by the

light rail operator's system safety plan. Alternately, conditional

approval may be requested at an early stage in the project, and FRA

would thereafter review the system safety program plan's status to

determine readiness to commence operations. Where FRA grants a waiver,

the state agency will oversee the area addressed by the waiver, but FRA

will actively participate in partnership with FTA and the state agency

to address any safety problems.

Factors to Address Related To Specific Regulations and Statutes

Operators of light rail systems are likely to apply for waivers of

many FRA rules. FRA offers the following suggestions on factors

petitioners may want to address concerning specific areas of

regulation. (All ``part'' references are to title 49 CFR.) Parts 209

(Railroad Safety Enforcement Procedures), 211 (Rules of Practice), 212

(State Safety Participation), and 216 (Special Notice and Emergency

Order Procedures) are largely procedural rules that are unlikely to be

the subject of waivers, so those parts are not discussed further.

Track, Structures, and Signals

Track Safety Standards (Part 213)

For segments of a light rail line not involving operations over the

general system, assuming the light rail operation meets the definition

of ``rapid transit,'' the track safety standards do not apply. However,

for general system track used by both the conventional and light rail

lines, the standards apply and a waiver is very unlikely. A light rail

operation that owns track over which the conventional railroad operates

may wish to consider assigning responsibility for that track to the

other railroad. If so, the track owner must follow the procedure set

forth in 49 CFR 213.5(c). Where such an assignment occurs, the owner

and assignee are responsible for compliance.

Signal Systems Reporting Requirements (Part 233)

This part contains reporting requirements with respect to methods

of train operation, block signal systems, interlockings, traffic

control systems, automatic train stop, train control, and cab signal

systems, or other similar appliances, methods, and systems. In the case

of the separate street railway segments of a light rail line, assuming

that the system meets the definition of ``rapid transit,'' the

reporting requirements of this part do not apply. However, if a signal

system failure occurs on general system track which is used by both

conventional and light rail lines, and triggers the reporting

requirements of this part, the light rail

[[Page 59052]]

operator must file, or cooperate fully in the filing of, a signal

system report. The petition should explain whether the light rail

operator or conventional railroad is responsible for maintaining the

signal system. Assuming that the light rail operator (or a contractor

hired by this operator) has responsibility for maintaining the signal

system, that entity is the logical choice to file each signal failure

report, and a waiver is very unlikely. Moreover, since a signal failure

first observed by a light rail operator can later have catastrophic

consequences for a conventional railroad using the same track, a waiver

would jeopardize rail safety on that general system trackage. Even if

the conventional railroad is responsible for maintaining the signal

systems, the light rail operator must still assist the railroad in

reporting all signal failures by notifying the conventional railroad of

such failures.

Grade Crossing Signal System Safety (Part 234)

This part contains minimum standards for the maintenance,

inspection, and testing of highway-rail grade crossing warning systems,

and also prescribes standards for the reporting of system failures and

minimum actions that railroads must take when such warning systems

malfunction. In the case of the separate street railway segments of a

light rail line, assuming that the system meets the definition of

``rapid transit,'' the reporting requirements of this part do not

apply. However, if a grade crossing accident or warning activation

failure occurs on general system track which is used by both

conventional and light rail lines, and triggers the reporting

requirements of this part, the light rail operator must file, or

cooperate to ensure the filing of, a report to FRA within 24 hours of

such an accident or a grade crossing signal system failure report

concerning any failure that occurs during its operations. The petition

should explain whether the light rail operator or conventional railroad

is responsible for maintaining the grade crossing devices. Assuming

that the light rail operator (or a contractor hired by this operator)

has responsibility for maintaining the grade crossing devices, that

entity is the logical choice to file each grade crossing signal failure

report, and a waiver is very unlikely. Moreover, since a grade crossing

warning device failure first observed by a light rail operator can

later have catastrophic consequences for a conventional railroad using

the same track, a waiver would jeopardize rail safety on that general

system trackage. However, if the conventional railroad is responsible

for maintaining the grade crossing devices, the light rail operator

will still have to assist the railroad in reporting all grade crossing

signal failures. Moreover, regardless of which railroad is responsible

for maintenance of the grade crossing signals, any railroad (including

a light rail operation) operating over a crossing that has experienced

an activation failure, partial activation, or false activation must

take the steps required by this rule to ensure safety at those

locations. While the maintaining railroad will retain all of its

responsibilities in such situations (such as contacting train crews and

notifying law enforcement agencies), the operating railroad must

observe requirements concerning flagging, train speed, and use of the

locomotive's audible warning device.

Approval of Signal System Modifications (Part 235)

This part contains instructions governing applications for approval

of a discontinuance or material modification of a signal system or

relief from the regulatory requirements of part 236. In the case of the

separate street railway segments of a light rail line, assuming that

the system meets the definition of ``rapid transit,'' the application

requirements of this part do not apply, and no waiver would be

necessary. In the case of a signal system located on general system

track which is used by both conventional and light rail lines, a light

rail operation is subject to this part only if it (or a contractor

hired by the operator) owns or has responsibility for maintaining the

signal system. If the conventional railroad does the maintenance, then

that railroad would file any application submitted under this part; the

light rail operation would have the right to protest the application

under Sec. 235.20. The petition should discuss whether the light rail

operator or conventional railroad is responsible for maintaining the

signal system.

Standards for Signal and Train Control Systems (Part 236)

This part contains rules, standards, and instructions governing the

installation, inspection, maintenance, and repair of signal and train

control systems, devices, and appliances. In the case of the separate

street railway segments of a light rail line, assuming that the system

meets the definition of ``rapid transit,'' the requirements of this

part do not apply, and no waiver would be necessary. In the case of a

signal system located on general system track which is used by both

conventional and light rail lines, a light rail operation is subject to

this part only if it (or a contractor hired by the operation) owns or

has responsibility for installing, inspecting, maintaining, and

repairing the signal system. If the light rail operation has these

responsibilities, a waiver would be unlikely because a signal failure

would jeopardize the safety of both the light rail operation and the

conventional railroad. If the conventional railroad assumes all of the

responsibilities under this part, the light rail operation would not

need a waiver, but it would have to abide by all operational

limitations imposed on this part and by the conventional railroad. The

petition should discuss whether the light rail operator or conventional

railroad has responsibility for installing, inspecting, maintaining,

and repairing the signal system.

Motive Power and Equipment

Railroad Noise Emission Compliance Regulations (Part 210)

If the light rail equipment would normally meet the standards in

this rule, there would be little reason to seek a waiver of it. This

part has an exception for ``street, suburban, or interurban electric

railways unless operated as a part of the general railroad system of

transportation.'' 49 CFR 210.3(b)(2). The petition should address

whether this exception may apply to the light rail operation. The

greater the integration of the light rail and conventional operations,

the less likely this exception would apply. If it appears that the

light rail system would neither meet the standards nor fit within the

exception, the petition should address noise mitigation measures used

on the system, especially as part of a system safety program.

Railroad Freight Car Safety Standards (Part 215)

A light rail operator is likely to move freight cars only in

connection with maintenance-of-way work. As long as such cars are

properly stenciled in accordance with section 215.305, this part does

not otherwise apply, and a waiver would seem unnecessary.

Rear End Marking Devices (Part 221)

This part requires that each train occupying or operating on main

line track be equipped with a display on the trailing end of the rear

car of that train, and continuously illuminate or flash a marking

device. The device, which must be approved by FRA, must have specific

intensity, beam arc width, color, and flash rate characteristics. A

light rail operation seeking a waiver of this part will need to explain

how other marking

[[Page 59053]]

devices with which it equips its vehicles, or other means such as train

control, will provide the same assurances as this part of a reduced

likelihood of collisions attributable to the inconspicuity of the rear

end of a leading train. The petition should describe the light rail

vehicle's existing marking devices (e.g., headlights, brakelights,

taillights, turn signal lights), and indicate whether the vehicle

contains reflectors. If the light rail system will operate in both a

conventional railroad environment and in streets mixed with motor

vehicles, the petition should discuss whether adapting the design of

the vehicle's lighting characteristics to conform to FRA's regulations

would adversely affect the safety of its operations in the street

environment. A light rail system that has a system safety program

developed under FTA's rules may choose to discuss how that program

addresses the need for equivalent levels of safety when its vehicles

operate on conventional railroad corridors.

Safety Glazing Standards (Part 223)

This part provides that passenger car windows be equipped with FRA-

certified glazing materials in order to reduce the likelihood of injury

to railroad employees and passengers from the breakage and shattering

of windows and avoid ejection of passengers from the vehicle in a

collision. This part, in addition to requiring the existence of at

least four emergency windows, also requires window markings and

operating instructions for each emergency window, as well as for each

window intended for emergency access, so as to provide the necessary

information for evacuation of a passenger car. FRA will not permit

operations to occur on the general system in the absence of effective

alternatives to the requirements of this part that provide an

equivalent level of safety. The petition should explain what equivalent

safeguards are in place to provide the same assurance as part 223 that

passengers and crewmembers are safe from the effects of objects

striking a light rail vehicle's windows. The petition should also

discuss the design characteristics of its equipment when it explains

how the safety of its employees and passengers will be assured during

an evacuation in the absence of windows meeting the specific

requirements of this part. A light rail system that has a system safety

program plan developed under FTA's rule may be able to demonstrate that

the plan satisfies the safety goals of this part.

Locomotive Safety Standards (Part 229)

This part contains minimum safety standards for all locomotives,

except those propelled by steam power. FRA recognizes that due to the

unique characteristics of light rail equipment, some of these

provisions may be irrelevant to light rail equipment, and that others

may not fit properly in the context of light rail operations. To the

extent that the light rail operation encompasses the safety risks

addressed by the provisions of this part, a waiver petition should

explain precisely how the light rail system's practices will provide

for the safe condition and operation of its locomotive equipment. In

order to reduce the risk of grade crossing accidents, it is important

that all locomotives used by both conventional railroads and light rail

systems present the same distinctive profile to motor vehicle operators

approaching grade crossings. If uniformity is sacrificed by permitting

light rail systems to operate locomotives with varying levels of

illumination, or with lights placed in different locations on the

equipment, safety could be compromised. Accordingly, although light

rail headlights are likely to be of lower candela, the vehicle design

should maintain the triangular pattern required of other locomotives

and cab cars to the extent practicable.

Safety Appliance Laws (49 U.S.C. 20301-20305)

Since certain safety appliance requirements (e.g., automatic

couplers) are statutory, they can only be ``waived'' by FRA under the

exemption conditions set forth in 49 U.S.C. 20306. Because exemptions

requested under this statutory provision do not involve a waiver of a

safety rule, regulation, or standard (see 49 CFR 211.41), FRA is not

required to follow the rules of practice for waivers contained in part

211. However, whenever appropriate, FRA will combine its consideration

of any request for an exemption under Sec. 20306 with its review under

part 211 of a light rail operation's petition for waivers of FRA's

regulations.

FRA may grant exemptions from the statutory safety appliance

requirements in 49 U.S.C. 20301-20305 only if application of such

requirements would ``preclude the development or implementation of more

efficient railroad transportation equipment or other transportation

innovations.'' 49 U.S.C. 20306. The exemption for technological

improvements was originally enacted to further the implementation of a

specific type of freight car, but the legislative history shows that

Congress intended the exemption to be used elsewhere so that ``other

types of railroad equipment might similarly benefit.'' S. Rep. 96-614

at 8 (1980), reprinted in 1980 U.S.C.C.A.N. 1156,1164.

FRA recognizes the potential public benefits of allowing light rail

systems to take advantage of underutilized urban freight rail corridors

to provide service that, in the absence of the existing right-of-way,

would be prohibitively expensive. Any petitioner requesting an

exemption for technological improvements should carefully explain how

being forced to comply with the existing statutory safety appliance

requirements would conflict with the exemption exceptions set forth at

49 U.S.C. 20306. The petition should also show that granting the

exemption is in the public interest and is consistent with assuring the

safety of the light rail operator's employees and passengers.

Safety Appliance Standards (Part 231)

The regulations in this part specify the requisite location,

number, dimensions, and manner of application of a variety of railroad

car safety appliances (e.g., handbrakes, ladders, handholds, steps),

and directly implement a number of the statutory requirements found in

49 U.S.C. 20301-20305. These very detailed regulations are intended to

ensure that sufficient safety appliances are available and able to

function safely and securely as intended.

FRA recognizes that due to the unique characteristics of light rail

equipment, some of these provisions may be irrelevant to light rail

operation, and that others may not fit properly in the context of light

rail operations (e.g., crewmembers typically do not perform yard duties

from positions outside and adjacent to the light rail vehicle or near

the vehicle's doors). However, to the extent that the light rail

operation encompasses the safety risks addressed by the regulatory

provisions of this part, a waiver petition should explain precisely how

the light rail system's practices will provide for the safe operation

of its passenger equipment. The petition should focus on the design

specifications of the equipment, and explain how the light rail

system's operating practices, and its intended use of the equipment,

will satisfy the safety purpose of the regulations while providing at

least an equivalent level of safety.

Passenger Equipment Safety Standards (Part 238)

This part prescribes minimum Federal safety standards for railroad

passenger

[[Page 59054]]

equipment. Since a collision on the general railroad system between

light rail equipment and conventional rail equipment could prove

catastrophic, because of the significantly greater mass and structural

strength of the conventional equipment, a waiver petition should

describe the light rail operation's system safety program that is in

place to minimize the risk of such a collision. The petition should

discuss the light rail operation's operating rules and procedures,

train control technology, and signal system. If the light rail operator

and conventional railroad will operate simultaneously on the same

track, the petition should include a quantitative risk assessment that

incorporates design information and provide an engineering analysis of

the light rail equipment and its likely performance in derailment and

collision scenarios. The petitioner should also demonstrate that risk

mitigation measures to avoid the possibility of collisions, or to limit

the speed at which a collision might occur might occur, will be

employed in connection with the use of the equipment on a specified

shared-use rail line. This part also contains requirements concerning

power brakes on passenger trains, and a petitioner seeking a waiver in

this area should refer to these requirements, not those found in 49 CFR

part 232.

Operating Practices

Railroad Workplace Safety (Part 214)

This part contains standards for protecting bridge workers and

roadway workers. The petition should explain whether the light rail

operator or conventional railroad is responsible for bridge work on

shared general system trackage. If the light rail operator does the

work and does similar work on segments outside of the general system,

it may wish to seek a waiver permitting it to observe OSHA standards

throughout its system.

There are no comparable OSHA standards protecting roadway workers.

The petition should explain which operator is responsible for track and

signal work on the shared segments. If the light rail operator does

this work, the petition should explain how the light rail operator

protects these workers. However, to the extent that protection varies

significantly from FRA's rules, a waiver permitting use of the light

rail system's standards could be very confusing to train crews of the

conventional railroad who follow FRA's rules elsewhere. A waiver of

this rule is unlikely. A petition should address how such confusion

would be avoided and safety of roadway workers would be ensured.

Railroad Operating Rules (part 217)

This part requires filing of a railroad's operating rules and that

employees be instructed and tested on compliance with them. A light

rail operation would not likely have difficulty complying with this

part. However, if a waiver is desired, the light rail system will need

to explain how other safeguards it has in place provide the same

assurance that operating employees are trained and periodically tested

on the rules that govern train operation. A light rail system that has

a system safety program plan developed under FTA's rules may be in a

good position to give such an assurance.

Railroad Operating Practices (Part 218)

This part requires railroads to follow certain practices in various

aspects of their operations (protection of employees working on

equipment, protection of trains and locomotives from collisions in

certain situations, prohibition against tampering with safety devices,

protection of occupied camp cars). Some of these provisions (e.g., camp

cars) may be irrelevant to light rail operations. Others may not fit

well in the context of light rail operations. To the extent the light

rail operation presents the risks addressed by the various provisions

of this part, a waiver provision should explain precisely how the light

rail system's practices will address those risks. FRA is not likely to

waive the prohibition against tampering with safety devices, which

would seem to present no particular burden to light rail operations.

Moreover, blue signal regulations, which protect employees working on

or near equipment, are not likely to be waived to the extent that such

work is performed on track shared by a light rail operation and a

conventional railroad, where safety may best be served by uniformity.

Control of Alcohol and Drug Use (Part 219)

FRA will not permit operations to occur on the general system in

the absence of effective rules governing alcohol and drug use by

operating employees. FTA's own rules may provide a suitable alternative

for a light rail system that is otherwise governed by those rules.

However, to the extent that light rail and conventional operations

occur simultaneously on the same track, FRA is not likely to apply

different rules to the two operations, particularly with respect to

post-accident testing, for which FRA requirements are more extensive.

Railroad Communications (Part 220)

A light rail operation is likely to have an effective system of

radio communication that may provide a suitable alternative to FRA's

rules. However, the greater the need for radio communication between

light rail personnel (e.g., train crews or dispatchers) and personnel

of the conventional railroad (e.g., train crews, roadway workers), the

greater will be the need for standardized communication rules and,

accordingly, the less likely will be a waiver.

Railroad Accident/Incident Reporting (Part 225)

FRA's accident/incident information is very important in the

agency's decisionmaking on regulatory issues and strategic planning. A

waiver petition should indicate precisely what types of accidents and

incidents it would report, and to whom, under any alternative it

proposes. FRA is not likely to waive its reporting requirements

concerning train accidents or highway-rail grade crossing collisions

that occur on the general railroad system. Reporting of accidents under

FTA's rules is quite different and would not provide an effective

substitute. However, with regard to employee injuries, the light rail

operation may, absent FRA's rules, otherwise be subject to reporting

requirements of FTA and OSHA and may have an interest in uniform

reporting of those injuries wherever they occur on the system.

Therefore, it is more likely that FRA would grant a waiver with regard

to reporting of employee injuries.

Hours of Service Laws (49 U.S.C. 21101-21108)

The hours of service laws apply to all railroads subject to FRA's

jurisdiction, and govern the maximum work hours and minimum off-duty

periods of employees engaged in one or more of the three categories of

covered service described in 49 U.S.C. 21101. If an individual performs

more than one kind of covered service during a tour of duty, then the

most restrictive of the applicable limitations control. Under current

law, a light rail operation could request a waiver of the substantive

provisions of the hours of service laws only under the ``pilot

project'' provision described in 49 U.S.C. 21108, provided that the

request is based upon a joint petition submitted by the railroad and

its affected labor organizations. Because waivers requested under this

statutory provision do not involve a waiver of a

[[Page 59055]]

safety rule, regulation, or standard (see 49 CFR 211.41), FRA is not

required to follow the rules of practice for waivers contained in part

211. However, whenever appropriate, FRA will combine its consideration

of any request for a waiver under Sec. 21108 with its review under part

211 of a light rail operation's petition for waivers of FRA's

regulations.

If such a statutory waiver is desired, the light rail system will

need to assure FRA that the waiver of compliance is in the public

interest and consistent with railroad safety. The waiver petition

should include a discussion of what fatigue management strategies will

be in place for each category of covered employees in order to minimize

the effects of fatigue on their job performance. However, FRA is

unlikely to grant a statutory waiver covering employees of a light rail

operation who dispatch the trains of a conventional railroad or

maintain a signal system affecting shared use trackage.

Hours of Service Recordkeeping (Part 228)

This part prescribes reporting and recordkeeping requirements with

respect to the hours of service of employees who perform the job

functions set forth in 49 U.S.C. 21101. As a general rule, FRA

anticipates that any waivers granted under this part will only exempt

the same groups of employees for whom a light rail system has obtained

a waiver of the substantive provisions of the hours of service laws

under 49 U.S.C. 21108. Since it is important that FRA be able to verify

that a light rail operation is complying with the on- and off-duty

restrictions of the hour of service laws for all employees not covered

by a waiver of the laws' substantive provisions, it is unlikely that

any waiver granted of the reporting and recordkeeping requirements

would exclude those employees. However, in a system with fixed work

schedules that do not approach 12 hours on duty in the aggregate, it

may be possible to utilize existing payroll records to verify

compliance.

Passenger Train Emergency Preparedness (Part 239)

This part prescribes minimum Federal safety standards for the

preparation, adoption, and implementation of emergency preparedness

plans by railroads connected with the operation of passenger trains.

FRA's expectation is that by requiring affected railroads to provide

sufficient emergency egress capability and information to passengers,

along with mandating that these railroads coordinate with local

emergency response officials, the risk of death or injury from

accidents and incidents will be lessened. A waiver petition should

state whether the light rail system has an emergency preparedness plan

in place under a state system safety program developed under FTA's

rules for the light rail operator's separate street railway segments.

Under a system safety program, a light rail operation is likely to have

an effective plan for dealing with emergency situations that may

provide an equivalent alternative to FRA's rules. To the extent that

the light rail operation's plan relates to the various provisions of

this part, a waiver petition should explain precisely how each of the

requirements of this part is being addressed. The petition should

especially focus on the issues of communication, employee training,

passenger information, liaison relationships with emergency responders,

and marking of emergency exits.

Qualification and Certification of Locomotive Engineers (Part 240)

This part contains minimum Federal safety requirements for the

eligibility, training, testing, certification, and monitoring of

locomotive engineers. Those who operate light rail trains may have

significant effects on the safety of light rail passengers, motorists

at grade crossings, and, to the extent trackage is shared with

conventional railroads, the employees and passengers of those

railroads. The petition should describe whether a light rail system has

a system safety plan developed under FTA's rules that is likely to have

an effective means of assuring that the operators, or ``engineers,'' of

its equipment receive the necessary training and have proper skills to

operate a light rail vehicle in shared use on the general railroad

system. The petition should explain what safeguards are in place to

ensure that light rail engineers receive at least an equivalent level

of training, testing, and monitoring on the rules governing train

operations to that received by locomotive engineers employed by

conventional railroads.

Waivers That May be Appropriate for Time-Separated Light Rail

Operations

The foregoing discussion of factors to address in a petition for

approval of shared use concerns all such petitions and, accordingly, is

quite general. FRA is willing to provide more specific guidance on

where waivers may be likely with regard to light rail operations that

are time-separated from conventional operations. FRA's greatest concern

with regard to shared use of the general system is a collision between

light rail and conventional trains on the same track. Because the

results could well be catastrophic, FRA places great emphasis on

avoiding such collisions. The surest way to guarantee that such

collisions will not occur is to strictly segregate light rail and

conventional operations by time of day so that the two types of

equipment never share the same track at the same time. This is not to

say that FRA will not entertain waiver petitions that rely on other

methods of collision avoidance such as sophisticated train control

systems. However, petitioners who do not intend to separate light rail

from conventional operations by time of day will face a very steep

burden of demonstrating an acceptable level of safety. FRA does not

insist that all risk of collision be eliminated. However, given the

enormous severity of the likely consequences of a collision, the

demonstrated risk of such an event must be extremely remote.

There are various ways of providing such strict separation by time.

For example, freight operations could be limited to the hours of

midnight to 5 a.m. when light rail operations are prohibited. Or, there

might be both a nighttime and a mid-day window for freight operation.

The important thing is that the arrangement not permit simultaneous

operation on the same track by clearly defining specific segments of

the day when only one type of operation may occur. Mere spacing of

train movements by a train control system does not constitute this

temporal separation.

FRA is very likely to grant waivers of many of its rules where

complete temporal separation between light rail and conventional

operations is demonstrated in the waiver request. The chart below,

which differs only slightly from the one published in the joint FRA/FTA

policy statement issued in May 1999, lists each of FRA's railroad

safety rules and provides FRA's early thinking on whether the operator

of a light rail system that shares trackage with a conventional

railroad should expect to comply with the rule on the shared track or

may receive a waiver. This chart assumes that the operations of the

local rail transit agency on the general railroad system are completely

separated in time from conventional railroad operations, and that the

light rail operation poses no atypical safety hazards. FRA's procedural

rules on matters such as enforcement (49 CFR parts 209 and 216), and

its statutory authority to take emergency action to address an imminent

hazard of death or

[[Page 59056]]

injury, would apply to these operations in all cases.

Where waivers are granted, a light rail operator would be expected

to operate under a system safety plan developed in accordance with the

FTA state safety oversight program. The state safety oversight agency

would be responsible for the safety oversight of the light rail

operation, even on the general system, with regard to aspects of that

operation for which a waiver is granted. FRA will actively participate

in partnership with the state agency to address any safety problems. If

the conditions under which the waiver was granted change substantially,

or unanticipated safety issues arise, FRA may modify or withdraw a

waiver in order to ensure safety.

Time-Separated Light Rail Operations: Possible Waivers

------------------------------------------------------------------------

Title 49 CFR

part Subject of rule Likely treatment Comments

------------------------------------------------------------------------

Track, Structures, and Signals

------------------------------------------------------------------------

213............ Track Safety Comply (assuming If the

Standards. light rail conventional RR

operator owns owns the track,

track or has light rail will

been assigned have to observe

responsibility speed limits for

for it). class of track.

233, 235, 236.. Signal and train Comply (assuming If conventional

control. light rail RR maintains

operator or its signals, light

contractor has rail will have

responsibility to abide by

for signal operational

maintenance). limitations and

report signal

failures.

234............ Grade Crossing Comply (assuming If conventional

Signals. light rail RR maintains

operator or its devices, light

contractor has rail will have

responsibility to comply with

for crossing sections

devices). concerning

activation

failures and

false

activations.

213, Appendix C Bridge safety Not a rule. .................

policy. Compliance

voluntary.

------------------------------------------------------------------------

Motive Power and Equipment

------------------------------------------------------------------------

210............ Noise emission... Waive............ State safety

oversight.

215............ Freight car Waive............ State safety

safety standards. oversight.

221............ Rear end marking Waive............ State safety

devices. oversight.

223............ Safety glazing Waive............ State safety

standards. oversight.

229............ Locomotive safety Waive, except State safety

standards. perhaps for oversight.

alerting lights,

which are

important for

grade crossing

safety.

231*........... Safety appliance Waive............ State safety

standards. oversight; see

note below on

statutory

requirements.

238............ Passenger Waive............ State safety

equipment oversight.

standards.

------------------------------------------------------------------------

Operating Practices

------------------------------------------------------------------------

214............ Bridge Worker.... Waive............ OSHA standards.

214............ Roadway Worker Comply........... .................

Safety.

217............ Operating Rules.. Waive............ State safety

oversight.

218............ Operating Waive, except for State safety

Practices. prohibition on oversight.

tampering with

safety devices

related to

signal system,

and blue signal

rules on shared

track.

219............ Alcohol and Drug. Waive if FTA rule FTA rule may

otherwise apply.

applies.

220............ Radio Waive, except to State safety

communications. extent oversight.

communications

with freight

trains and

roadway workers

are necessary.

225............ Accident Comply with Employee injuries

reporting and regard to train would be

investigation. accidents and reported under

crossing FTA or OSHA

accidents; waive rules.

as to injuries.

228**.......... Hours of service Waive (in concert See note below on

recordkeeping. with waiver of possible waiver

statute); waiver of statutory

not likely for requirements.

personnel who

dispatch

conventional RR

or maintain

signal system on

shared use track.

239............ Passenger train Waive............ State safety

emergency oversight.

preparedness.

240............ Engineer Waive............ State safety

certification. oversight.

------------------------------------------------------------------------

* Certain safety appliance requirements (e.g., automatic couplers) are

statutory and can only be waived under the conditions set forth in 49

U.S.C. 20306, which permits exemptions if application of the

requirements would ``preclude the development or implementation of

more efficient railroad transportation equipment or other

transportation innovations.'' If consistent with employee safety, FRA

could probably rely on this provision to address most light rail

equipment that could not meet the standards.

** Currently, 49 U.S.C. 21108 permits FRA to waive substantive

provisions of the hours of service laws based upon a joint petition by

the railroad and affected labor organizations, after notice and an

opportunity for a hearing. This is a ``pilot project'' provision, so

waivers are limited to two years but may be extended for additional

two-year periods after notice and an opportunity for comment.

In light of the foregoing, FRA proposes to amend its published

statement of agency policy in the manner explained below.

List of Subjects in 49 CFR Part 209

Railroad safety, Reporting and recordkeeping requirements.

The Proposed Policy Statement

In consideration of the foregoing, 49 CFR part 209 is amended as

follows:

[[Page 59057]]

PART 209--[AMENDED]

1. The authority citation for part 209 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107, 20111, 20112, 20114, and 49

CFR 1.49.

2. Appendix A to 49 CFR part 209 is amended as follows.

A. Under the heading ``The Extent and Exercise of FRA's Safety

Jurisdiction,'' the seventh paragraph (which begins, ``For example, all

of FRA's regulations'') is removed, and the following paragraphs are

added in its place:

Appendix A to Part 209--Interim Statement of Agency Policy

Concerning Enforcement of the Federal Railroad Safety Laws

* * * * *

For example, all of FRA's regulations exclude from their reach

railroads whose entire operations are confined to an industrial

installation (i.e., ``plant railroads''), such as those in steel

mills that do not go beyond the plant's boundaries. E.g., 49 CFR

225.3(a)(1) (accident reporting regulations). Other regulations

exclude not only plant railroads but all other railroads that are

not operated as a part of, or over the lines of, the general

railroad system of transportation. E.g., 49 CFR 214.3 (railroad

workplace safety). By ``general railroad system of transportation,''

FRA refers to the network of standard gage track over which goods

may be transported throughout the nation and passengers may travel

between cities and within metropolitan and suburban areas. Much of

this network is interconnected, so that a rail vehicle can travel

across the nation without leaving the system. However, mere physical

connection to the system does not bring trackage within it. For

example, trackage within an industrial installation that is

connected to the network only by a switch for the receipt of

shipments over the system is not a part of the system.

Moreover, portions of the network may lack a physical connection

but still be part of the system by virtue of the nature of

operations that take place there. For example, the Alaska Railroad

is not physically connected to the rest of the general system but is

part of it. The Alaska Railroad exchanges freight cars with other

railroads by car float and exchanges passengers with interstate

carriers as part of the general flow of interstate commerce.

Similarly, an intercity high speed rail system with its own right of

way would be part of the general system although not physically

connected to it. The presence on a rail line of any of these types

of railroad operations is a sure indication that such trackage is

part of the general system: the movement of freight cars in trains

outside the confines of an industrial installation, the movement of

intercity passenger trains, or the movement of commuter trains

within a metropolitan or suburban area. Urban rapid transit

operations are ordinarily not part of the general system, but may

have sufficient connections to that system to warrant exercise of

FRA's jurisdiction (see discussion of passenger operations, below).

Tourist railroad operations are not inherently part of the general

system and, unless operated over the lines of that system, are

subject to few of FRA's regulations.

The boundaries of the general system are not static. For

example, a portion of the system may be purchased for the exclusive

use of a single private entity and all connections, save perhaps a

switch for receiving shipments, severed. Depending on the nature of

the operations, this could remove that portion from the general

system. The system may also grow, as with the establishment of

intercity service on a brand new line. However, the same trackage

cannot be both inside and outside of the general system depending

upon the time of day. If trackage is part of the general system,

restricting a certain type of traffic over that trackage to a

particular portion of the day does not change the nature of the

line--it remains the general system.

* * * * *

B. Appendix A to 49 CFR part 209 is further amended by adding the

following paragraphs immediately before the section called

``Extraordinary Remedies:''

* * * * *

FRA'S Policy on Jurisdiction Over Passenger Operations

Under the Federal railroad safety laws, FRA has jurisdiction

over all railroads except urban rapid transit operations not

connected to the general railroad system of transportation. 49

U.S.C. 20102. Within the limits imposed by this authority, FRA

exercises jurisdiction over all railroad passenger operations,

regardless of the equipment they use, unless FRA has specifically

stated below an exception to its exercise of jurisdiction for a

particular type of operation. This policy is stated in general terms

and does not change the reach of any particular regulation under its

applicability section. That is, while FRA may generally assert

jurisdiction over a type of operation here, a particular regulation

may exclude that kind of operation from its reach. Therefore, this

statement should be read in conjunction with the applicability

sections of all of FRA's regulations.

Intercity Passenger Operations

FRA exercises jurisdiction over all intercity passenger

operations. Because of the nature of the service they provide, they

are all considered part of the general railroad system, even if not

physically connected to other portions of the system.

Commuter Operations

FRA exercises jurisdiction over all commuter operations.

Congress apparently intended that FRA do so when it enacted the

Federal Railroad Safety Act of 1970, and made that intention very

clear in the 1982 and 1988 amendments to that act. FRA has attempted

to follow that mandate consistently. A commuter system's connection

to other railroads is not relevant under the rail safety statutes.

In fact, FRA considers commuter railroads to be part of the general

railroad system regardless of such connections.

In general, FRA considers an operation to be a commuter railroad

if its primary purpose is transporting commuters to and from work

within a metropolitan area and no substantial portion of its

operations is devoted to moving people within a city's boundaries.

Examples of commuter railroads include Metra and the Northern

Indiana Commuter Transportation District in the Chicago area;

Virginia Railway Express and MARC in the Washington area; and Metro-

North, the Long Island Railroad, New Jersey Transit, and the Port

Authority Trans Hudson (PATH) in the New York area. Incidental

service from point to point within a an urban area does not make an

operation something other than a commuter railroad if the primary

purpose is serving commuters within the broader metropolitan and

suburban area.

Other Short Haul Passenger Service

The federal railroad safety statutes give FRA authority over

``commuter or other short-haul railroad passenger service in a

metropolitan or suburban area.'' 49 U.S.C. 20902. This means that,

in addition to commuter service, there are other short-haul types of

service that Congress intended that FRA reach. For example, a

passenger system designed primarily to move intercity travelers from

a downtown area to an airport, or from an airport to a resort area,

would be one that does not have the transportation of commuters

within a metropolitan area as its primary purpose. FRA would

ordinarily exercise jurisdiction over such a system as ``other

short-haul service'' unless it meets the definition of urban rapid

transit and is not connected in a significant way to the general

system.

Urban Rapid Transit Operations

One type of short-haul passenger service requires special

treatment under the safety statutes: rapid transit operations in an

urban area. Only these operations are excluded from FRA's

jurisdiction, and only if they are not connected to the general

system. FRA considers an operation to be urban rapid transit if one

of its major purposes is, and a substantial portion of its

operations is devoted to, moving people from point to point within

an urban area where there are multiple stops within the city for

that purpose. Such an operation could still have the transportation

of commuters within the larger metropolitan area as one of its major

purposes without being considered a commuter railroad. For example,

the Washington Metro system carries large numbers of people to and

from the suburbs daily, but one of its primary functions is to

provide transportation within the city, where a large proportion of

its station stops are located. Other examples of urban rapid transit

systems include the CTA in Chicago and the subway systems in New

York, Boston, and Philadelphia. The type of equipment used by such a

system is not determinative of its status. However, the kinds of

vehicles ordinarily associated with street railways, trolleys,

subways, and elevated railways are the types of vehicles

[[Page 59058]]

most often used for urban rapid transit operations.

FRA can exercise jurisdiction over a rapid transit operation

only if it is connected to the general railroad system, but need not

exercise jurisdiction over every such operation that is so

connected. FRA is aware of several different ways that rapid transit

operations can be connected to the general system. Our policy on the

exercise of jurisdiction will depend upon the nature of the

connection(s). In general, a connection that involves operation of

transit equipment as a part of, or over the lines of, the general

system will trigger FRA's exercise of jurisdiction. Below, we review

some of the more common types of connections and their effect on the

agency's exercise of jurisdiction. This is not meant to be an

exhaustive list of connections.

Rapid Transit Connections Sufficient To Trigger FRA's Exercise of

Jurisdiction

Certain types of connections to the general railroad system will

cause FRA to exercise jurisdiction over the rapid transit line to

the extent it is connected. FRA will exercise jurisdiction over the

portion of a rapid transit operation that is conducted as a part of

or over the lines of the general system. For example, rapid transit

operations are conducted on the lines of the general system where

the rapid transit operation and other railroad use the same track,

and where the rapid transit operation and other railroad have a

railroad crossing at grade. In the first example, FRA will exercise

its jurisdiction over the operations conducted on the general

system. In the second example, FRA will exercise its jurisdiction

sufficiently to assure safe operations over the at-grade railroad

crossing. FRA will also exercise jurisdiction to a limited extent

over a rapid transit operation that, while not operated on the same

tracks as the conventional railroad, is connected to the general

system by virtue of operating in a shared right of way involving

joint control of trains. For example, if a rapid transit line and

freight railroad were to operate over a movable bridge and were

subject to the same authority concerning its use (e.g., the same

tower operator controls trains of both operations), FRA will

exercise jurisdiction in a manner sufficient to ensure safety at

this point of connection. FRA believes these connections present

sufficient intermingling of the rapid transit and general system

operations to pose significant hazards to one or both operations.

In situations involving joint use of the same track, it does not

matter that the rapid transit operation occupies the track only at

times when the freight, commuter, or intercity passenger railroad

that shares the track is not operating. While such time separation

could provide the basis for waiver of certain of FRA's rules, it

does not mean that FRA will not exercise jurisdiction. However, FRA

will exercise jurisdiction over only the portions of the rapid

transit operation that are conducted on the general system. For

example, a rapid transit line that operates over the general system

for a portion of its length but has significant portions of street

railway that are not used by conventional railroads would be subject

to FRA's rules only with respect to the general system portion. The

remaining portions would not be subject to FRA's rules. If the non-

general system portions of the rapid transit line are considered a

``rail fixed guideway system'' under 49 CFR part 659, those rules,

issued by the Federal Transit Administration, would apply to them.

Similarly, geographically isolated connections such as rail-rail

crossings and common control of bridges will warrant exercise of

jurisdiction only with regard to the safety of operations at those

locations. However, FRA will apply its equipment, track, signal, and

other regulatory requirements at this location as benchmark levels

against which safety conditions in waiver applications can be

tested.

Rapid Transit Connections Not Sufficient To Trigger FRA's Exercise

of Jurisdiction

Although FRA could exercise jurisdiction over a rapid transit

operation based on any connection it has to the general railroad

system, FRA believes there are certain connections that are too

minimal to warrant the exercise of its jurisdiction. For example, a

rapid transit system that has a switch for receiving shipments from

the general system railroad is not one over which FRA would assert

jurisdiction. This assumes that the switch is used only for that

purpose. In that case, any entry onto the rapid transit line by the

freight railroad would be for a very short distance and solely for

the purpose of dropping off or picking up cars. In this situation,

the rapid transit line is in the same situation as any shipper or

consignee; without this sort of connection, it cannot receive goods

by rail.

Mere use of a common right of way in which the conventional

railroad and rapid transit operation do not share any means of train

control would not trigger FRA's exercise of jurisdiction. In this

context, the presence of intrusion detection devices to alert one or

both carriers to incursions by the other one would not be considered

a means of common train control. These common rights of way are

often designed so that the two systems function completely

independently of each other. However, where transit operations share

highway-rail grade crossings with conventional railroads, FRA

expects both systems to observe its rules on grade crossing signals

that, for example, require prompt reports of warning system

malfunctions. See 49 CFR part 234. In addition, FRA and FTA will

coordinate with rapid transit agencies and railroads wherever there

are concerns about sufficient intrusion detection and related safety

measures designed to avoid a collision between rapid transit trains

and conventional equipment.

Where these very minimal connections exist, and except with

regard to shared highway-rail grade crossings, FRA will not exercise

jurisdiction unless and until an emergency situation arises

involving such a connection, which is a very unlikely event.

However, if such a system is properly considered a rail fixed

guideway system, FTA's rules (49 CFR part 659) will apply to it.

Coordination of the FRA and FTA Programs

FTA's rules on rail fixed guideway systems (49 CFR part 659)

apply to any such systems or portions thereof not subject to FRA's

rules. On rapid transit systems that are not sufficiently connected

to the general railroad system to warrant FRA's exercise of

jurisdiction (as explained above), FTA's rules will apply

exclusively. On those rapid transit systems that are connected to

the general system in such a way as warrant exercise of FRA's

jurisdiction, only those portions of the rapid transit system that

entail operations over the lines of the general system will be

subject to FRA's rules.

A rapid transit railroad may apply to FRA for a waiver of any

FRA regulations. See 49 CFR part 211. FRA will seek FTA's views

whenever a rapid transit operation petitions FRA for a waiver of its

safety rules. In granting or denying any such waiver, FRA will make

clear whether its rules do not apply to any segments of the

operation so that it is clear where FTA's rules do apply.

* * * * *

Issued in Washington, D.C., on September 30, 1999.

Jolene M. Molitoris,

Federal Railroad Administrator.

[FR Doc. 99-28489 Filed 10-29-99; 8:45 am]

BILLING CODE 4910-06-P