FRA Jurisdiction Over Commuter Railroads and Rail Transit/Freight Operations Kevin M. Sheys, Partner...
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Transcript of FRA Jurisdiction Over Commuter Railroads and Rail Transit/Freight Operations Kevin M. Sheys, Partner...
FRA Jurisdiction Over Commuter Railroads and Rail Transit/Freight Operations
Kevin M. Sheys, [email protected]&L Gates, Washington, DCwww.klgates.com
2008 South West Transit AssociationTransit Law SeminarJuly 20-22, 2008Santa Fe, NM
K&L GATES www.klgates.com
Federal Railroad Safety Act Definition:
(1) “railroad” -
(A) means any form of non-highway ground transportation that runs on railsor electromagnetic guide ways, including -
(i) commuter or other short-haul railroad passenger service in a metropolitan or suburban area and commuter railroad service that was operated by the Consolidated Rail Corporation on
January 1, 1979; and
(ii) high speed ground transportation systems that connect metropolitan areas, without regard to whether those systemsuse new technologies not associated with traditional
railroads; but
(B) does not include rapid transit operations in an urban area that are
not connected to the general railroad system of transportation.
49 U.S.C. § 20102 (emphasis added)
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FRA Jurisdiction
• FRA has jurisdiction over commuter railroads, regardless of connection to the general railroad system
• FRA has jurisdiction over rail transit operations if connected to the general railroad system
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No FRA Jurisdiction
• FRA does not have jurisdiction over rail transit operations not connected to the general railroad system
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Determining FRA Jurisdiction
Logical Order/ApproachQ : Is it commuter rail?
Y: FRAN: Is it connected to
the GRS?Y: FRAN: Not FRA
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Step 1: Is It Commuter Rail?
• FRA Shared Use Policy (49 C.F.R. Part 209, Appendix A)
• Chicago Transit Authority case• Triangle Transit Authority case
Determining FRA Jurisdiction (cont’d)
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FRA Shared Use Policy Defines Commuter Rail
• Serves urban area, suburbs and more distant outlying communities in the greater metropolitan area
• Q: Average trip length?• Q: Average distance between stations?
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FRA Shared Use Policy Defines Commuter Rail (cont’d)
• Primary function is moving passengers back and forth between work and homes within the greater metropolitan area
• Q: What percentage of trips are work and school trips?
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FRA Shared Use Policy Defines Commuter Rail (cont’d)
• Vast bulk of trains operated in morning/evening peak periods
• A few trains at other hours• Q: Percentage of trains in
Rush Hour Periods?
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FRA Shared Use Policy Defines Commuter Rail (cont’d)
Most critical Factor?• Absence or presence of riders
with trip purpose other than commuter or school
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FRA Shared Use Policy Defines Urban Rapid Transit
• Serves an urban area (and may also serve its suburbs)
• Q: What is the average trip length?• Q: What is the average distance
between stations?
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FRA Shared Use Policy Defines Urban Rapid Transit (cont’d)
• Major function is station to station service with multiple station stops within the urban area
• Q: Various trip purposes, besides work and school trips
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FRA Shared Use Policy Defines Urban Rapid Transit (cont’d)
• Frequent train service even outside morning/evening peak periods
• Q: What percentage of train starts are in Rush Hour Periods?
• Q: How much weekend service?
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Determining FRA Jurisdiction
Step 2: Is it connected to the GRS?
What is a “connection”? FRA shared use policy says must look at nature of connection
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Determining FRA Jurisdiction (cont’d)
Connection?FRA will construe the word to mean “operating of, or over the lines of, the general system.”
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Easy Cases Connection –
Shared Track, including freight and passenger window (“Temporal Separation”)
No Connection Freight track used for delivery of goods or equipment to transit facility
Determining FRA Jurisdiction (cont’d)
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Closer Cases Shared grade crossings Shared right-of-way (separate track)
Commonly dispatched facilities
Determining FRA Jurisdiction (cont’d)
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Determining FRA Jurisdiction (cont’d)
Modified Order/ApproachQ : Is it commuter rail?
Y: FRAN: Does it use track on the GRS?
Y: FRA N: Does it have a common facility?
Y: FRA on facilityN: Does it have grade crossings?
Y : FRA at grade crossings
N : No FRA
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Commuter Rail or Connected Rail-Why do I care about the
difference?
Available waivers – very limited on commuter rail
If Connected Rail – FRA will regulate only to the extent of the connection
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Capital Metropolitan Transportation Authority
(CMTA)
• Sought waiver in May, 2006• Based in part on temporal separation
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Compare Earlier Series of Waivers to CMTA Waiver
• Overall, FRA granted most of the waiver requests in prior series of waivers
• CMTA, FRA denied a signification number of waiver requests
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Compare Utah Transit Authority TRAX Waiver to CMTA Waiver
• Worker/Operations WaiversFRA Regulation: CMTA UTA TRAX Waiver
Part 219 Control of Alcohol and Drug Use Denied Granted
Part 225 Accident and Incident Reporting Denied Granted – Injury ReportingDenied – Accident Reporting
Part 239 Passenger Train Emergency Preparedness Denied Granted
Part 240 Qualification and Certification of Locomotive Engineers Denied Granted
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Compare UTA TRAX Waiver to CMTA Waiver (cont’d)
• Rolling Stock/Vehicle WaiversFRA Regulation: CMTA UTA TRAX Waiver
Part 221 Rear End Marking Devices Pending – data request Granted
Part 223 Safety Glazing Standards Granted – conditions Granted
Part 229 Locomotive Safety StandardsLocomotive Identification
Granted N/A
Aluminum main reservoirs Denied – refile N/A
Clearance above top of rail Pending – data request Granted
Headlights and auxiliary lights Denied – refile Granted
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Compare UTA TRAX Waiver to CMTA Waiver (cont’d)
• Rolling Stock/Vehicle Waivers (cont’d)FRA Regulation: CMTA UTA TRAX Waiver
Part 231 Safety Appliance Standards Denied – may not be needed Granted
Part 238 Passenger Equipment Safety StandardsFire Safety Denied – refile N/A
Train electronic hardware and software safety Denied – may not be needed N/A
Emergency window exit Granted – data request Granted
Static end strength Granted – data request Granted
Anti-climbing mechanism Granted – data request Granted
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Compare UTA TRAX Waiver to CMTA Waiver (cont’d)
• Rolling Stock/Vehicle Waivers (cont’d)FRA Regulation: CMTA UTA TRAX Waiver
Part 238 Passenger Equipment Safety Standards (cont’d)Link between coupling mechanism and car body Pending – data request Granted
Forward-facing end structure, collision & corner posts Granted Granted
Rollover strength/side structure Granted Granted
Truck to car body attachment Granted, except on truck under center unit
N/A
Locomotive fuel tanks Denied on main fuel tank
N/A
Interior fittings Granted – conditions Granted
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Explanation• FRA regulates commuter rails in shared
track environments differently than it regulates transit in shared track environments
• Especially on worker/operations issues• FRA has jurisdiction over both, but
exercises it differently
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Approach/Analysis
• Know whether your project is commuter rail or rail transit
• If it is commuter rail, be aware of the compliance issues and the very limited availability of waivers
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Approach/Analysis (cont’d)
• If it is rail transit, know whether it is connected to the general railroad system
• If it is connected, be aware of the scope of waivers available depending on the nature of the connection and the operating environment
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Approach/Analysis (cont’d)
• If it is rail transit, make sure your entire management team knows the implications of establishing a connection
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Approach/Analysis (cont’d)
• Unless absolutely clear, analyze your facts under the FRA Shared Use Policy and Case Law
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References
• 49 U.S.C. § 20102• 49 CFR Part 209, Appendix A and Part 211, Appendix A• FRA Shared Use Policy, 65 Fed. Reg. 42529• Utah Transit Authority TRAX Waiver filing and decision –
http://www.regulations.gov/fdmspublic/component/main?main=DocketDetailEd=FRA-1999-6253
• Capital Metropolitan Transportation Authority waiver filing and decision - http://www.regulations.gov/fdmspublic/component/main?main=DocketDetailEd=FRA-2006-25040
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References (cont’d)
• Chicago Transit Authority v. Flohr, 570 F.2d 1305 (7th Cir. 1977).• Triangle Transit Authority,
http://www.fra.dot.gov/downloads/counsel/tritrans.pdf; http://www.klgates.com/files/Publication/496a09c6-4551-433f-9406-eec8587f478b/Presentation/PublicationAttachment/6a4a9bf0-e56d-405f-974c-8429fb0ac994/KL%20Transportation%20Alert%20-%20FRA%20Asserts%20Jurisdiction%20-%20February%202003.pdf