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DEPARTMENT OF TRANSPORTATION other passengers in ‘‘light rail’’ vehicles. the comment period on this statement This development holds great promise (64 FR 58124). Then, based on a request Federal Railroad Administration for enhancing transportation from the major organization alternatives in metropolitan and representing rail commuter and transit 49 CFR Parts 209 and 211 suburban areas. However, this shared operations, we extended the comment [FRA Docket No. FRA±1999±5685, Notice use of conventional rail lines, which are deadline again, to February 14, 2000. No. 7] within FRA’s broad safety jurisdiction, We think this public process gave all also poses some significant safety concerned ample opportunity to RIN 2130±AB33 issues. FTA provides a substantial share develop and convey their views, and we of the funding for many of these have spent a great deal of time Statement of Agency Policy passenger operations, some of which reviewing the many comments we Concerning Jurisdiction Over the straddle the jurisdictional line between received. Safety of Railroad Passenger FRA’s and FTA’s statutory safety I. Discussion of Comments Operations and Waivers Related to authority. Therefore, FRA and FTA have Shared Use of the Tracks of the decided to explain jointly, in a notice FRA received nearly 50 responses General Railroad System by Light Rail published elsewhere in today’s Federal concerning its proposed statement of and Conventional Equipment Register, how they will work to ensure agency policy, including comments AGENCY: Federal Railroad that they exercise jurisdiction in a from: state and local governments and Administration (FRA), Department of complementary way over these shared transportation authorities; transit Transportation (DOT). use operations. In this notice, FRA agencies; transportation planners and explains in greater detail the extent of consultants; citizen groups; a railroad ACTION: Final rule and policy statement. its safety jurisdiction and how it will labor union; the association SUMMARY: FRA and the Federal Transit exercise that authority in the shared use representing the interests of Administration (FTA) have jointly context. FRA also explains how those conventional railroads; and the developed a policy concerning safety light rail operations that may desire association representing the interests of issues related to light rail transit waivers of certain of FRA’s rules may go the rail transit industry. Discussions operations that share use of the general about seeking such waivers. follow with respect to the primary railroad system track with conventional This notice does not amend any of issues raised by the commenters. In trains. That policy, published elsewhere FRA’s substantive safety rules or impose light of the comments received, FRA has in today’s Federal Register, describes any regulatory burdens not already reconsidered some aspects of its how the two agencies will coordinate imposed by those rules. Those rules proposed policy and has elected to use of their respective safety authorities cover a wide range of safety issues such adopt certain portions of the policy over shared track operations. FRA is as equipment, track, signals, grade without substantive change from what FRA proposed. issuing its own separate policy crossings, and operating practices. By The commenters addressed many of statement to describe the extent of its their own terms, they already apply to at least those rail operations, like those the important topics discussed in FRA’s statutory jurisdiction over railroad proposal, including the extent and passenger operations (which covers all addressed here, that occur on lines where conventional trains operate. exercise of FRA’s jurisdiction, shared railroads except urban rapid transit use of the general railroad system of operations not connected to the general Nothing in this statement expands the applicability provisions of those rules. transportation by light rail and railroad system) and explain how it will conventional rail equipment, shared use exercise that jurisdiction. The statement The only rules that FRA is amending are its statement of policy on safety of railroad rights of way by light rail and also explains FRA’s waiver process and conventional rail equipment, and the discusses factors that should be jurisdiction, found in appendix A to 49 CFR part 209, and 49 CFR part 211, to nature of the waiver process involving addressed in any petition submitted by which FRA is adding a new appendix shared-use operations. Several light rail operators and other railroads containing its statement of policy commenters applauded the agencies’ seeking approval of shared use of concerning waivers related to shared efforts to clarify how FRA and FTA will general railroad system track. use of the general system. FRA believes exercise their respective authorities and DATES: This statement of policy is it is important to ensure that the provide guidance on how to use FRA’s effective July 10, 2000. agency’s current thinking on these waiver process in this context. Many FOR FURTHER INFORMATION CONTACT: subjects can be readily located in the commenters had suggestions on how Daniel C. Smith, Assistant Chief CFR. FRA could improve its expression of its Counsel for Safety, FRA, RCC–10, 1120 Although agencies are not required to policy, and a few simply opposed FRA’s Vermont Avenue, NW., Mail Stop 10, provide notice and an opportunity to exercise of its jurisdiction, whether Washington, DC 20590 (telephone: 202– comment on interpretive rules and generally over light rail operations on 493–6029) or David H. Kasminoff, Trial statements of policy, FRA did so here to the general system or specifically over Attorney, FRA, RCC–12, 1120 Vermont ensure that it had the benefit of the their own operation. The major themes Avenue, NW., Mail Stop 10, views of interested parties in developing that emerged from FRA’s review of the Washington, DC 20590 (telephone: 202– its policy. Because of the substantial comments are as follows: 493–6043). overlap in subject matter between FRA’s • FRA’s proposed definitional proposed statement of policy (published distinction between ‘‘commuter Introduction November 1, 1999, at 64 FR 59046) and railroad’’ and ‘‘rapid transit,’’ which DOT strongly encourages increased the joint FRA/FTA statement (published involves determining the primary use of railroads to serve the nation’s May 25, 1999, at 64 FR 28238), we purpose of the operation and whether a passenger transportation needs. Many concluded it made sense to have the substantial portion of the operation is communities are using or planning to comment periods on both statements devoted to moving people within a use railroad lines on which run concurrently. Therefore, we city’s boundaries, is viewed by some conventional freight and passenger extended the original comment period commenters as improperly based in trains operate to move commuters and on the joint statement to coincide with FRA’s statutory authority or too vague.

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• FRA should establish an transit system over which conventional insufficient that FRA legally does not administrative process to resolve passenger or freight trains operate. even ‘‘have’’ the jurisdiction over the jurisdictional questions, especially The NSWG notes that its suggested rapid transit system that FRA says it is those involving light rail projects still in changes to the policy statement do not choosing not to ‘‘exercise.’’ the planning stages. ‘‘offer a different view of FRA’s In response, FRA notes that its final • The ‘‘proposed restrictions’’ jurisdiction than the one FRA itself statement of agency policy concerning (apparently some commenters did not offers.’’ Instead, NSWG takes issue with jurisdiction included in Appendix A to realize that FRA’s rules already apply to particular aspects of how FRA has part 209 of the CFR, as amended by this these operations) on shared use of the expressed its jurisdictional reach. notice, is perfectly clear as to where same trackage by light rail and NSWG contests FRA’s suggestion that FRA believes it lacks jurisdiction. conventional rail equipment are ‘‘urban rapid transit’’ is an exception to Nothing FRA has said suggests that FRA unjustified because of added or special category of ‘‘commuter and could exercise jurisdiction it does not compliance costs and the possible other short-haul railroad passenger have. Moreover, it is correct in literal discouraging effect on the development operations’’ instead of a completely terms to say that FRA does not exercise and expansion of light rail transit separate category over which FRA lacks jurisdiction where it either lacks service. Certain commenters asked FRA jurisdiction. The commenter does not jurisdiction or chooses not to exercise it, to emulate what they understand as the wish to see the final policy statement and it is sometimes useful in certain European approach and permit imply a presumption that a rail contexts to combine those two simultaneous joint use of the same operation is automatically a commuter categories to give the reader a clear trackage by light rail and freight trains. or short-haul operation under FRA’s picture of what FRA believes is outside jurisdiction unless it is an exceptional • The shared-use waiver petition of both the extent and exercise of its and special type of short-haul operation. process is too burdensome to transit jurisdiction. For example, most of FRA’s FRA appreciates NSWG’s close reading rules contain an applicability section system operators. of 49 U.S.C. 20102, but believes that • that, among other things, excludes FRA needs to explain its regulatory reading would not produce role in cases of a light rail transit urban rapid transit systems not jurisdictional conclusions different from connected to the general system, but operation sharing a right-of-way but no those rendered under FRA’s reading. trackage with a conventional railroad. also contain the statutory definition of Whether ‘‘rapid transit operations in an ‘‘railroad’’ that removes such operations FRA Jurisdiction urban area’’ are a type of ‘‘short-haul from its jurisdiction. See, e.g., 49 CFR railroad passenger service’’ or a separate General Issues 240.3 and 240.7. Based on NSWG’s subset of the larger group of ‘‘railroads,’’ comment, however, we have taken pains Several commenters, including the the statute excludes only one category of in this document to distinguish the Maryland Transit Administration (MTA) rapid transit operations, i.e., those that existence of jurisdiction from its and the New Starts Working Group are ‘‘in an urban area’’ and not exercise. (NSWG),1 question the way in which connected to the general system. Under FRA stated the extent of its jurisdiction either reading, a rail operation is Definitions of Commuter Railroad and over light rail operations in the presumptively covered by the statute Rapid Transit proposed policy statement. MTA unless the conditions of the exception As FRA acknowledged in its proposal, concludes that, under 49 U.S.C. 20101, apply. the statutory definition of ‘‘railroad’’ FRA’s jurisdictional authority must be The NSWG also requests that FRA uses the terms ‘‘commuter or other based upon the nature of the operational correct some statements in the policy short-haul railroad passenger service’’ statement that NSWG believes blur the connection between two systems, and and ‘‘rapid transit operations in an distinction between questions of that FRA’s jurisdictional authority does urban area’’ without providing a jurisdiction and questions of the not derive from a mere connection of a definition of either type of service. For agency’s discretionary enforcement. For rapid transit operation to the general a transit system planning to build a new example, under the section describing system. In response, FRA notes that the operation that will not be connected to FRA’s policy on the exercise of its safety statute excludes only rapid transit the general railroad system, resolution jurisdiction, FRA states on page 59049 systems ‘‘not connected to’’ the general of the question of whether the service that it ‘‘currently exercises jurisdiction system and does not elaborate on the will be labeled as commuter or rapid over all railroad passenger operations in characteristics of a sufficient transit service is crucial.2 Several the nation except: (1) Urban rapid connection, which could reasonably transit operations not operated on or commenters objected to FRA’s lead to the conclusion that any over the general railroad system; ....’’ definitions of commuter service and connection (even a ‘‘mere’’ one) will The NSWG requests deletion of this rapid transit in an urban area, and some suffice. Nevertheless, as its proposed statement from a discussion of the suggested that FRA’s definitions did not policy makes clear, FRA takes into exercise of FRA’s jurisdiction because include certain factors they considered account the nature of the connection in FRA does not have statutory jurisdiction vital. However, except for one determining where to exercise its to regulate urban rapid transit commenter that offered a definition of jurisdiction, and generally construes operations not operated on or over the ‘‘rapid transit,’’ none of the commenters ‘‘connected to’’ as meaning that a rapid general railroad system. In addition, the actually recommended specific transit system is operated as a part of, NSWG objects to FRA’s statement on alternative definitions. or over the lines of, the general system. page 59050 that ‘‘it considers some The Southeastern Pennsylvania Of course, the general system may connections to the general system to be Transportation Authority (SEPTA) include tracks owned by the rapid insufficient to warrant exercise of its contends that FRA’s definition of jurisdiction over a transit operation.’’ ‘‘commuter railroad’’ is arbitrary and 1 NSWG indicates in its comments that it is a (Emphasis added.) The NSWG finds this coalition of nearly 40 transit properties, cities, and 2 If the operation is a commuter railroad, FRA has private sector companies committed to the statement to be misleading, arguing that jurisdiction even if there is no connection to any continued growth of rail transit in the United some rapid transit connections to the other railroad, and in fact considers the operation States. general system are so incidental and itself to be part of the general railroad system.

VerDate 112000 15:24 Jul 07, 2000 Jkt 190000 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\10JYR6.SGM pfrm08 PsN: 10JYR6 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations 42531 generic, and bears little or no relation to include ‘‘any form of nonhighway shared use would not be considered the underlying safety and policy ground transportation that runs on rails ‘‘rapid transit.’’ None of these light rail concerns embodied in the statute. or electromagnetic guideways.’’ 49 systems operates in an exclusive right- SEPTA expressed concern that under U.S.C. 20102. That statute speaks of of-way, and they all have grade what it considers FRA’s sweeping and commuter ‘‘service’’ and rapid transit crossings. FRA’s rationale for not somewhat vague definition of commuter ‘‘operations,’’ not the equipment used in exercising jurisdiction over their non- service, the overwhelming majority of either service. Given the vast range of shared-use segments is that these are, at transit operations of all types operated rail passenger equipment already in use least in some cases, rapid transit by SEPTA (bus, trolley, streetcar, and in this country and available from systems that would be outside of FRA’s rapid transit) could be viewed as suppliers around the world, basing jurisdiction but for their operation over possessing commuter characteristics. jurisdictional decisions on the type of the general system, and that the portions SEPTA stressed that discerning equipment is an impossible task. There where use is not shared can be jurisdiction from whether a transit is simply no rational basis for drawing effectively regulated under FTA’s system’s primary purpose is clear jurisdictional lines between types program. Adoption of PATH’s preferred transporting commuters to and from of equipment or for thinking that definition would point in the direction work within a metropolitan area ignores Congress intended FRA to do so. More of FRA’s assertion of jurisdiction over not only various unrelated important, if equipment were the those entire systems rather than just characteristics of the service, such as deciding factor, the equipment outside their shared use portions. Moreover, the type of equipment and frequency of of FRA’s jurisdiction could run TRB definition provides no help with service, but also historical and widely anywhere at any time, including mixed reading the phrase ‘‘commuter or other held notions regarding the limited scope in with conventional freight and short-haul railroad passenger service’’ in of Federal regulation of transit passenger operations without regard to the statute. Under TRB’s definition, a operations. In response, FRA notes that the attendant safety risks of collisions system would be considered rapid its proposed definitions were designed between equipment of vastly different transit based on its physical to give life to the sparse statutory structural strengths, and yet avoid characteristics even if its exclusive language with a very keen sense of FRA’s regulatory program. There is no business was hauling commuters. Of Congress’ concerns. As explained at evidence of such an intent in the statute. course, FRA believes that Congress has length in the proposed statement and as PATH also cites in its comments to clearly directed the agency to assert is clear from the statutory language, the Transportation Research Board’s jurisdiction over commuter operations. Congress specifically intended that FRA (TRB) definition of rapid transit. TRB While we appreciate PATH’s being not make jurisdictional determinations defines a rapid transit system as: the only commenter to offer an based on the type of rail equipment A transit system that generally serves one alternative to FRA’s definitions, we find being used but rather on the nature of urban area, using high speed, electrically PATH’s suggestion inappropriate for use the operation. powered passenger rail cars operating in in this context. FRA has struggled to The Port Authority of New York & trains in exclusive rights-of-way without develop definitions of these terms that New Jersey (PATH) commented that grade crossings (Chicago is an exception) and embody what we believe was the intent FRA is ignoring the plain meaning of with high platforms. The tracks may be in of Congress. We think that Congress words when it states on page 59049 of underground tunnels, on elevated structures, flatly wanted FRA to have and exercise the proposal that ‘‘it is the nature and in open cuts, at surface level, or any combination thereof. Some local terms use jurisdiction over all commuter location of the [rapid transit] operation, operations and to not have or exercise not the nature of the equipment, that for rail rapid transit are the elevated, the metro, the metropolitan railway, the rapid, jurisdiction over urban railroad transit determines whether FRA has the subway, the underground. operations that stand apart from the jurisdiction under the safety statutes.’’ PATH did not provide a citation to general rail system. We doubt that In this regard, PATH argues that FRA is Congress considered how difficult it creating an arbitrary distinction between the TRB document in which this definition appears. FRA notes that the may be to draw the line where systems ‘‘commuter railroads’’ and ‘‘rapid transit have characteristics of both types of operations’’ by looking to the primary definition begins in a circular fashion by defining rapid transit as a ‘‘transit operations. We have based our purpose of each type of service. PATH definitions, as best we could, on the believes that since commuter railroads system’’ without explaining what makes a system ‘‘transit.’’ Arguably, then, this plain meaning and legislative history of and rapid transit operations both the statutory terms as used in the transport people, the distinction definition merely describes the typical physical characteristics of a rail transit railroad safety statutes. Also, in a non- between a ‘‘commuter railroad’’ safety context, Congress has listed transporting commuters to and from system without addressing what operational characteristics make it certain specific rail systems as work within a metropolitan area and a commuter authorities in the Northeast ‘‘rapid transit operation’’ moving people transit. The definition states that such Rail Service Act of 1981 (‘‘NERSA’’), from point to point within an urban area systems generally operate in an urban Pub. L. No. 97–35, 45 U.S.C. 1104(3).3 has no relevance to the determination of area in ‘‘exclusive rights-of-way without In subsequently defining ‘‘railroad’’ in jurisdiction under the Federal railroad grade crossings.’’ That is certainly true the safety statutes, Congress clearly safety laws. Even assuming that the with regard to most systems FRA intended to include ‘‘commuter basis for the distinction is legally considers to be urban rapid transit. service.’’ 49 U.S.C. 20102. We think the correct, PATH is concerned that FRA’s However, if FRA adopted this decision as to what constitutes a definition, the vast majority of the light 3 The statute provides that ‘‘commuter authority’’ ‘‘substantial portion’’ of an operation rail systems (including those in includes the Metropolitan Transportation will be made in an arbitrary manner. operation in San Diego, Baltimore, and Authority, the Connecticut Department of In response, FRA again notes that it Salt Lake City) would be outside the Transportation, the Maryland Department of believes that Congress intended that the definition of urban rapid transit (and, Transportation, the Southeastern Pennsylvania Transportation Authority, the New Jersey Transit type of equipment used in a rail therefore, outside the sole statutory Corporation, the Massachusetts Bay Transportation operation not be a jurisdictional factor, exception) so that even their street Authority, and the Port Authority Trans-Hudson and that the word ‘‘railroad’’ be read to railway portions outside of the area of Corporation.

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1981 statute is a useful guide as to Congress considers a particular service FRA’s jurisdiction. Consistent with Congress’ concept of commuter service, to be commuter rail, FRA will respect APTA, the NSWG suggested that FRA at least with regard to the listed systems. that determination and consider the establish an informal process for transit The same committees of the same service to be a commuter railroad. systems to secure jurisdictional Congress produced both NERSA in 1981 Second, a system to which the first determinations without submitting to and the 1982 safety legislation and used presumption does not apply will be FRA jurisdiction. The NSWG stated that very similar terminology to refer to presumed to be an urban rapid transit FRA could offer transit systems the commuter operations, and the system if it is a subway or elevated option to use a bifurcated approach for legislative history of the 1982 safety operation with its own track system on the submission of waiver petitions. In amendments expressly acknowledges which no other railroad may operate, part one, the transit system could offer what was then the recent transition of has no highway-rail crossings at grade, facts and legal arguments sufficient to some commuter service to new operates within an urban area, and permit FRA to render a threshold commuter authorities, which NERSA moves passengers within the urban area jurisdictional determination, and in part had authorized. We see no reason to as one of its major functions. two (assuming that FRA has conclude that Congress intended that Where neither of the two jurisdiction) the transit system would the particular systems it identified as presumptions applies, FRA will look at submit its comprehensive waiver commuter operations in 1981 be each system on a case-by-case basis and petition. considered anything but commuter apply the following criteria: In response to these comments, FRA operations under the safety statutes. stresses that it is always willing to meet Therefore, we have amended our Indicators of urban rapid transit: with transit agency officials at the definition of commuter operations to • Serves an urban area and may also earliest stages of a project to determine include, at a minimum, the systems serve its suburbs. if the proposed operation would be Congress listed in 1981. Of course, we • Moving passengers from station to subject to FRA jurisdiction, and recognize that the listed authorities station within the urban boundaries is a welcomes the opportunity to could undertake new operations that major function of the system and there periodically consult with these differ substantially from those existing are multiple station stops within the individuals throughout the entire at the time of NERSA, and that the city for that purpose. planning and implementation of a statute would not provide guidance • The system provides frequent train project under our jurisdiction. FRA with respect to such new and different service even outside the morning and recognizes that the equipment choices operations. evening peak periods. and right-of-way alignment options are We are also revising the definitions of complex issues, the resolution of which Indicators of a commuter railroad: ‘‘commuter railroad’’ and ‘‘urban rapid may be aided if a transit agency receives transit’’ to remove as a consideration • Serves an urban area, its suburbs, early guidance from the agency whether ‘‘a substantial portion’’ of a and more distant outlying communities concerning FRA jurisdiction. system’s operations is devoted to in the greater metropolitan area. Accordingly, FRA has amended its moving people from station to station • The system’s primary function is policy to include an informal method within a city, and to focus instead on moving passengers back and forth for obtaining jurisdictional whether such service is a ‘‘primary between their places of employment in determinations from FRA early in the function’’ of the system or ‘‘an the city and their homes within the process before preparation of a waiver incidental function’’ of its service. The greater metropolitan area, and moving application. The mere submission of a ‘‘substantial portion’’ language passengers from station to station within request for FRA’s views on whether it suggested that there could be some the immediate urban area is, at most, an has jurisdiction over an entity would numerical threshold of intra-urban incidental function. not constitute submission to FRA’s service that could provide a bright line. • The vast bulk of the system’s trains jurisdiction or acquiescence in FRA’s Unfortunately, FRA is not aware of any are operated in the morning and evening eventual determination. Of course, FRA such quantitative bright line, and must peak periods with few trains at other would have to base such determinations instead focus in a more qualitative way hours. on the facts presented to it, and any on how a system functions and whether As several commenters significant changes in the system after such intra-urban service is truly a recommended, this more refined its determination could require primary or incidental function of a analysis looks at factors such as the revisiting that ruling. system. system’s geographical reach within a Although none of the commenters metropolitan area and the frequency of Jurisdiction Over Particular Operations offered an effective alternative to the service. The presumptions also resolve Four commenters directed their definitions we had proposed, they did many issues without the need for comments to the issue of whether FRA give us several factors to consider and further analysis. has statutory jurisdiction over their articulated a strong desire for greater particular rail operations. Process for Resolving Jurisdictional clarity on the commuter/rapid transit MTA considers the proposal to be an distinctions. Toward that end, we have Questions unwarranted and improper exercise of refined the definitions of those terms by Several commenters suggested that, in FRA’s jurisdiction as it relates to MTA’s noting which types of service are addition to setting forth meaningful light rail system. MTA states that it will presumptively commuter or rapid criteria for determining the scope of its use every available safety measure to transit and what criteria to apply in jurisdiction over light rail in shared ensure the safety of its system, and will determining the proper characterization corridors, the policy statement should proceed with its dialogue with FRA, but of a system that falls outside of the also describe what administrative continues to believe that FRA’s attempt presumptions. Under the final policy, options are available within FRA for to exercise jurisdiction over its light rail FRA’s jurisdictional determinations will resolving jurisdictional questions. The system is inappropriate under existing begin with two basic presumptions. American Public Transportation law. MTA argues that it is not the mere First, if there is a statutory Association (APTA) urged FRA to adopt connection to the general system determination (such as NERSA) that a pre-waiver review process to discuss through which FRA’s jurisdictional

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In this regard, MTA believes While FRA is including a summary in in a Petition for Approval of Shared that the minimal intrusion caused by this document of each operation’s Use, FRA indicated that light rail the operation of one freight train every assertions for public informational operators intending to share trackage on other night on its central light rail line purposes, this policy statement is not the general railroad system with does not abrogate the statutory the appropriate vehicle for resolving the conventional rail equipment must either exclusion for rail rapid transit systems jurisdictional issues involving the comply with FRA’s safety rules or set forth in 49 U.S.C. 20101. peculiar facts of particular operations. obtain a waiver of appropriate rules. 64 PATH indicates in its comments that Instead, FRA has addressed or will FR at 59050. FRA explained that a it is concerned with only the issue of address each operation’s concerns in the collision between an occupied light rail jurisdiction, and not with the policy course of separate meetings and/or transit vehicle and conventional freight statement’s discussion of shared written correspondence. or passenger equipment would have facilities, since the PATH system does catastrophic consequences because the not share track with any other operator. Effect of FRA Jurisdiction on the light rail vehicles are not designed to PATH stresses that since, in its view, it Applicability of Other Railroad Laws withstand such a collision. 64 FR 59049. shares virtually no common Two commenters, APTA and the FRA stated that the surest way to ensure characteristics with the Long Island NSWG, requested that FRA add that such collisions do not occur is to Railroad, MARC, or VRE, it should not language to the policy statement to strictly segregate light rail and be included by FRA as an example of a clarify that if a rail operation is subject conventional operations by time of day, ‘‘commuter railroad.’’ PATH concludes to FRA jurisdiction for rail safety and that the agency is likely to grant that, when applied to its operation, purposes, it does not necessarily mean waivers of many of its rules where FRA’s proposed definition of a transit that the operation is also covered by complete temporal separation between system as an operation that devotes a other Federal railroad statutes such as the incompatible equipment is substantial portion of its operations to the Federal Employers’ Liability Act, the demonstrated. 64 FR 59055. Some moving people from point to point Railway Labor Act, and the Railroad commenters welcomed FRA’s within an urban area would clearly Retirement Act. Likewise, the preference for temporal separation, result in the classification of PATH as commenters argue that being within the while others saw it as too restrictive and a rapid transit system. At the same time, scope of those other railroad laws not sufficiently open to the possibility PATH argues that FRA has no should have no relevance to FRA in that light rail and conventional reasonable basis for looking at the determining whether a railroad system equipment can operate safely and characteristics of the passengers who is deemed a railroad for rail safety simultaneously on the same track. ride PATH rather than the purposes. FRA agrees with the points Among the comments received, APTA characteristics of the equipment to made. These other Federal statutes have stressed that the final policy statement determine if it has jurisdiction. PATH’s their own definitions, purposes, and should reflect the principles of comments do not mention that a federal legislative histories. FRA does not promoting more livable communities appellate court ruled that FRA had not consult them in making jurisdictional and taking advantage of underutilized abused its discretion when, in 1996, it determinations under the safety statutes. freight corridors to provide service that determined that PATH is a railroad Moreover, FRA does not intend that its would otherwise be too expensive, and within its jurisdiction. Port Authority jurisdictional determinations have any noted that the expansion of rail Trans-Hudson Corp. v. Federal Railroad bearing on whether a rail operation is a passenger transportation would benefit Administration., No. 97–1103 (D.C. Cir., ‘‘railroad’’ for purposes of those other America’s communities in terms of Dec. 15, 1997), cert. denied, 525 U.S. statutes. While there are some specific reduced highway congestion, reduced 818 (1998). links in the safety statutes to some of pollution, short commuting times, and The Port Authority Transit those other laws (e.g., the rail safety increased economic opportunities. Corporation (PATCO) in Philadelphia, statutes incorporate the dispute APTA requested that the shared-use Pennsylvania states that because it is an resolution process of the Railway Labor waiver process be flexible, expeditious, intra-urban mass transit system not Act for handling certain disputes related and recognize already existing state connected to the general railroad to safety-based discrimination against safety oversight procedures in order to system, it is subject only to FTA’s employees, 49 U.S.C 20109(c), and the permit local authorities the maximum authority. Since PATCO is regulated by Federal Employers’ Liability Act flexibility in designing, building, and FTA, and the respective jurisdictions of contains a provision precluding a operating new light rail systems. FTA and FRA are mutually exclusive, APTA believes that a broad approach finding of contributory negligence PATCO requests that the final joint examining relative risk is vital to against any employee where the policy statement make clear that it is not developing an appropriate long-term railroad’s violation of any safety statute subject to FRA’s regulations. policy promoting light rail. In addition contributed to the employee’s injury or SEPTA devotes much of its comments to assessing the safety impact of death, 45 U.S.C. 53, we do not believe to arguing that its planned passenger diverting traffic to highways, FRA and operation between Philadelphia and that those links indicate a Congressional FTA should explore European system Reading, Pennsylvania, a distance of 62 intent that FRA’s safety jurisdiction safety techniques which permit miles, should not be subject to FRA’s would be affected by the reach of those operation of differing equipment jurisdiction. One alternative being statutes. designs on the same track based on considered for that line is a light rail Shared Use and Temporal Separation. crash avoidance philosophies (e.g., operation sharing a corridor with a advanced train control systems). FRA freight line. SEPTA contends that, Simultaneous Joint Use Of Track by should be open to new approaches for despite being primarily a commuter Light Rail and Conventional Equipment shared-use operations, e.g., fail safe line, this operation would be outside of In the discussion of ‘‘Waiver Petitions separation, train orders and track FRA’s jurisdiction because it would Concerning Shared Use of the General warrants, positive train control, and serve other transit needs, have separate System by Light Rail and Other operating practices and technological

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NCTD strongly commented that FRA did not justify the increase the crashworthiness of light rail endorses the concept of guidance for the need to restrict shared use of the same vehicles, and that positive train stop shared use of the general railroad track by freight and light rail service, technology can help avoid collisions. system by conventional and light rail and concluded that added compliance Delaware also noted concern about the operations, and agrees with FRA and costs will prevent the expansion of rail steep evidentiary burden facing a FTA that the primary purpose of the transit systems. The commenters urged petitioner that seeks a waiver. guidance should be the coordination of adoption of more flexible European- Mr. Gordon J. Thompson, an urban safety programs. style requirements involving positive transportation planner and consultant, New Jersey Transit (NJT) urged FRA train separation between light rail/rapid believes that issuance of the policy as to exercise its jurisdiction over those transit and conventional freight/ proposed would be an insult to the elements of shared trackage used by passenger trains operating on the same American transit industry and to state conventional rail operations (e.g., track, trackage. CBTI also urged FRA and FTA transportation regulatory agencies. He signals, grade crossing warning devices, to consider operational factors such as contends that the proposal could stymie dispatching), but not over light rail speed and traffic volume. With the electric rail transit development at a operating practices or light rail car exception of traffic on the Northeast time when the need to encourage the design standards. In this regard, NJT Corridor, a full mixing of conventional use of public transportation is a growing believes that time separation, operating railroad and light rail traffic should concern. The policy could make capital practices (including the unambiguous occur with the use of proper train and operating costs higher than transition from one service to another), control methods (e.g., positive train stop necessary to implement and operate and safety technologies should provide and speed control). CBTI also contended new rail transit systems, at a time when FRA with adequate assurances of the that FRA is proposing to adopt a double transit improvement funds remain safety of light rail operations on the standard, since automobiles, taxicabs, scarce. general system. NJT requests that the In its comments, SEPTA stressed that and school buses currently share the final policy statement state that there a shared-use option with freight railroad road with heavy trucks that may be would be no requirement to file a carriers is fundamental to developing a transporting hazardous materials. waiver petition when light rail cars The City of Santa Clarita, California cost effective and environmentally operate on the general system provided requested that FRA permit shared use of sound solution to mobility challenges. that the transit agency can demonstrate rail lines by freight and passenger The commenter states that temporal that adequate safety measures are in vehicles during the same time of day, separation should not be viewed as the place to eliminate the risks presented by noting that to do otherwise would only option, and FRA should allow hinder the potential development of separation that employs a combination shared use. Moreover, the commenter electric and diesel light rail lines in of track switches, interlocking signals, recommended that the final policy urban and rural areas. The commenter advanced control technology, and other statement specifically provide that once also noted that although light rail technical safeguards. In this regard, a transit agency demonstrates that there vehicles in European countries SEPTA notes that the proposed policy will be temporal separation through a simultaneously share trackage with statement discusses physical safety safe operating plan and appropriate heavy trains, no injuries or deaths have standards for different vehicle types and technology, and indicates that the light occurred. safety considerations with respect to rail operations will be subject to an The Joint Policy Advisory Committee different operating strategies, yet cites FTA-approved State Safety Oversight on Transportation (JPACT) stated that no standards for measuring the safe Program, FRA would not exercise the imposition of total temporal execution of various operating strategies jurisdiction. separation as a condition for granting a in delivering transportation services. In support of its contention that FRA waiver is too restrictive and costly, and The phrase ‘‘the safety typical of should not require the filing of waivers recommended considering factors such conventional rail passenger operations’’ for light rail equipment used in a as positive train separation, safety lacks a definition of what it means or temporally-separated operation, NJT standards, signal system quality, how it should be measured. indicates that it would be burdensome dispatch procedures and coordination, The North Central Texas Council of and inappropriate to expect the transit train speeds, and overall line usage. Governments expressed support and agency to explain how it will provide JPACT also recommended that FRA approval of the shared use policy for for an equivalent level of safety. work with FTA and APTA to study light rail transit operating on Completion of a detailed waiver transit systems in Europe that operate conventional railroad tracks. The application would be particularly on the same trackage as freight without commenter believes that the proposed burdensome to a small project, absolute temporal separation. policies concerning passenger and rail especially if the interaction between The State of Delaware Department of employee safety, coordinated operations heavy and light rail is minimal or Transportation (Delaware) expressed of track infrastructure, and temporal nonexistent. concern in its comments about the separation are well reasoned and will Finally, NJT urges FRA to study policy statement’s de facto effect of allow for the development of new whether shared use operations can be discouraging increased shared use of transit opportunities in abandoned or permitted without temporal separation. tracks for light rail transit systems and lesser used rail corridors. In this regard, the commenter states that stressed the need to avoid hampering The North (San Diego) County Transit the proposed policy statement is implementation of light rail projects. District (NCTD) believes that temporal concerned with crashworthiness, but Although waivers are an option, separation provides a level of safety for fails to give equal consideration to crash Delaware contends that FRA provides train crews and the public that can avoidance technology (e.g., derails, no insight into what types of alternative permit optimal use of the infrastructure, signaling systems, and dispatching).

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FRA has carefully considered all of occurrence, the greater the predictable European high speed passenger systems the comments. However, many of them severity the more interested FRA is in in detail for many years, and more are based on what FRA believes are two reducing the likelihood of the recently has directly observed the mixed critical misunderstandings, i.e., the occurrence. FRA has made clear that it use operations in places such as view that FRA’s policy will somehow has not ruled out the possibility that Karlsruhe, Germany. If some of those impose new compliance burdens, and methods of collision avoidance such as systems were replicated in the United the notion that FRA has ruled out sophisticated train control systems may States in every detail, FRA would very simultaneous use of track by light rail provide an acceptable level of safety. 64 likely approve them by rule or waiver. and conventional equipment under all FR 59055. However, FRA has stated that However, FRA is not aware of any circumstances. a petitioner seeking to use these types current or proposed light rail system in Several commenters seem not to of equipment on the same track at the the United States that is fully understand that FRA’s policy statement same time will face a steep burden in comparable to the European systems the imposes no new burdens, but rather demonstrating that the likelihood of commenters offer as a model. suggests how relief from existing such a catastrophic accident is remote. The successful European experience regulatory burdens might be obtained by FRA would expect the waiver with mixed light rail and freight traffic waiver. Wholly independent of this applicant to demonstrate that the risk of is best exemplified by the system in policy, FRA’s rules apply to these such an event is extremely remote by Karlsruhe, Germany. FRA and FTA systems today and would continue to discussing the types of extraordinary officials (including FRA safety experts) apply whether or not FRA issued a safety measures that would be taken to have personally observed that operation statement of policy on shared use. If adequately reduce the likelihood of a twice in the last several months, most waivers are not obtained, those rules catastrophic collision between the two recently as part of a joint visit in April apply as they are written. For example, types of equipment to an acceptable 2000. In Karlsruhe, the light rail system FRA’s passenger safety standards (49 level. The waiver application would shares some trackage with freight and CFR part 238) alone would preclude all also need to include a quantitative risk intercity passenger trains, and the light rail operations on the general assessment concerning the risk of a different operations are not segregated system, since light rail vehicles do not collision under the applicant’s proposed by time of day. However, unlike many meet the structural and other standards operating scenario and an engineering candidate lines for new light rail starts found in that rule. (Of course, the rule analysis of the light rail equipment’s in the United States, the predominant has a grandfathering provision that, resistance to damage in various collision traffic in Karlsruhe is scheduled under certain conditions, makes one scenarios. 64 FR 59051. FRA recognizes passenger trains, rather than a mix of basic structural requirement that a 100 percent risk reduction cannot local and through freight trains. More inapplicable to certain equipment be assigned to any individual risk important, the Karlsruhe system already in use in 1999.) Therefore, it is countermeasure, and that there are risks involves certain features critical to its very much in the commenters’ interest associated with the adoption of any new safety: all trains that operate in the for FRA to provide guidance on how its technology.4 However, because shared use portions must be equipped waiver process will work in this context simultaneous joint use of trackage by with automatic train control; the light and how best to address the issues of structurally incompatible equipment rail vehicles have very high braking concern to FRA. Although the waiver inherently involves significant risk of capacities (as compared to light rail process will entail some cost to the light severe consequences, FRA believes it is vehicles used in the United States); all rail operation, that cost is occasioned by simply being reasonable to insist that trains use a common communications FRA’s existing waiver rules (49 CFR part the proponent of such an operation meet system that permits radio 211) rather than this statement, and the a steep burden of demonstrating a communication with the control center alternative is the full cost of compliance corresponding risk reduction through and all types of other trains; all trains with existing substantive rules. the use of highly competent methods of operate under the same operating rules; Various commenters who oppose the collision avoidance. train crews are part of an integrated concept of temporal separation contend work force that is trained to operate all European Experience With that FRA fails to recognize the types of vehicles in use on the line and sophisticated operational and Simultaneous Joint Use of the Same in fact operates different vehicles during technological safeguards that can Trackage the average work week; all dispatching eliminate the risks associated with As discussed above, many of the is done centrally for all trains; all train shared use of the general railroad commenters urge FRA to study the crews are limited to less than 40 hours system, particularly for operations success of mixed operations in parts of of work per week; the different types of involving simultaneous joint use. These Europe, where passenger and freight rail equipment that operate in the commenters generally maintain that vehicles of different strengths operate shared use area differ less in mass and FRA is preoccupied with on the same track at the same time. The structural strength than do conventional crashworthiness of the vehicles and not commenters stress that joint use of and light rail vehicles in the United sufficiently focused on crash avoidance. tracks by transit and standard railroad States; and grade crossings, which are In response, FRA points out that vehicles has proved to be an important not as common as in the United States, temporal separation is actually a crash innovation in Europe that should be are protected by four-quadrant gates. avoidance measure, and the one most permitted here. The combination of all of these likely to prove fully successful. FRA’s In response, FRA observes that the features has produced what appears to discussion of the disparate agency is very familiar with the be a very safe, integrated system in crashworthiness features of light rail European systems. FRA has studied Karlsruhe. The commenters who and conventional equipment was advocate that system as a model for intended to highlight the likely severity 4 These points are made in a report to FRA from shared, simultaneous use of track in this of a collision between those types of its Railroad Safety Advisory Committee. See page country imply that FRA is unwilling to 47 of ‘‘Report of the Railroad Safety Advisory vehicles. Because safety risk is a Committee to the Federal Railroad Administrator— permit such innovation here. That is not function of the likely severity of an Implementation of Positive Train Control Systems,’’ correct. Instead, FRA is unwilling to accident and the likelihood of its dated September 8, 1999. permit simultaneous use of track that

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While many the AAR’s request that FRA decline to presented by the crossings. light rail systems may have comparable exercise its safety jurisdiction over this train control technology, FRA has not type of connection. In fact, because all Definitions seen a proposal to equip all trains of FRA’s rules apply to all portions of The Central Puget Sound Regional (freight, passenger, and light rail) with the general system railroad, they apply this technology in the shared use area. to particular locations where the Transit Authority (Sound Transit) Yet there is no reason to believe that the conventional railroad has a crossing recommends that FRA clarify its Karlsruhe system would exist without with a light rail line. For example, the definitions of the terms ‘‘shared use’’ it. Nor is FRA aware of any proposal track and any signal devices at those and ‘‘shared track.’’ Sound Transit urges that involves an integrated workforce locations must be maintained in FRA to define ‘‘shared track’’ to mean operating all the trains, with all crews accordance with FRA’s rules. However, cases where rail modes of differing working less than 40 hours per week. FRA notes that its rules apply only with vehicle strengths do, or intend to, The idea of a freight railroad and a light respect to the general system portion of operate on the same track, and would rail operation using exactly the same the rapid transit system’s operation; if require strict temporal separation to operating rules has not commonly been the non-general system portion of the receive FRA waivers. Sound Transit a feature of proposed shared use rapid transit line is considered a ‘‘rail suggests that FRA define ‘‘shared use’’ operations in this country. fixed guideway system’’ under 49 CFR to mean facilities that rail modes of FRA admires the integrated rail part 659, FTA’s rules apply to that differing vehicle strengths may use or system in Karlsruhe, which has begun to portion. share during the same operating hours, be replicated elsewhere in Europe. AAR’s comment points out the need but whose nature precludes the However, we ask that anyone who for FRA to clarify when and how it will simultaneous use or occupancy of those invokes that system as a model be fully exercise jurisdiction over these railroad cognizant of its traffic mix and basic facilities; an example would be a safety features and what it would take crossings at grade. In brief, FRA will crossing for freight and light rail. In to replicate them on America’s freight work to ensure proper coordination of cases of ‘‘shared use,’’ Sound Transit lines. Corporate structures, labor movements at these locations. FRA contends that temporal separation agreements, and differing railroad and expects the general system railroad to would not be needed, provided that transit cultures make some of these comply with all applicable safety rules there is compliance with existing FRA features extremely hard to replicate in at that location, such as 49 CFR part 236 regulations. where the crossing is protected by a this country. We think that the future of In response to Sound Transit’s simultaneous joint use in this country signal system. If FRA detects a safety problem at such a point that strict comments, we don’t believe that will likely depend on safety innovations ‘‘shared use’’ and ‘‘shared track’’ are specifically crafted for the rail network adherence to FRA rules on the part of the conventional railroad will not sufficiently distinguishable to provide we have, such as positive train control added clarity. However, in an attempt to systems that are being tested in various address, FRA will work with the enhance clarity, FRA is revising the locations, and the development of light conventional railroad and rapid transit final policy statement to explain that rail vehicles that are compliant with line to develop a solution. As explained FRA’s passenger equipment standards. more fully in the statement of policy ‘‘shared use of track’’ refers to situations However, we are open to consideration below, FRA does not expect to receive where light rail transit operators of any reasonable proposal. comprehensive Petitions for Approval of conduct their operations over the lines Shared Use concerning isolated of the general system, and includes light Minor Connections to the General conventional/light rail crossings that rail operations that are wholly separated Railroad System constitute the only connection a rapid in time (temporally separated) from The AAR expressed concern about transit system has to the general system. conventional rail operations as well as FRA’s exercise of jurisdiction in cases FRA does not consider those isolated light rail operations operating on the where the only connection between the connections to the general system as same trackage at the same time as rail transit system and the conventional constituting shared use of general conventional rail equipment railroad is an at-grade crossing. The system trackage. However, given the fact (simultaneous joint use). As discussed AAR believes that FRA should impose that the crossing does constitute a above, in instances where a rail transit no restrictions on these operations, and connection to the general system that system crosses a conventional railroad that both should be permitted to operate poses some risk to safety, FRA does at grade, FRA’s safety rules will cover during the same time of day. In expect to receive a brief waiver petition this point of connection to the general from the rail transit operator seeking addition, the commenter contends that system, but FRA will not categorize this relief from all of FRA’s rules based on complying with restrictions would be crossing, in itself, as a case of two prohibitively expensive and the safety protections in place at the operations sharing use of the general compromise service to freight crossing. On the other hand, where a system. Accordingly, when these two customers. light rail line crosses one or more As FRA stated in its proposal on page conventional lines at grade and also rail operations cross at grade, the same 59058, when a rapid transit operation shares trackage with one or more of set of rules apply regardless of whether and a general system railroad have a those railroads, FRA will expect the the light rail operation and the railroad crossing at grade, ‘‘FRA will Petition for Approval of Shared Use to conventional rail operation operate exercise its jurisdiction sufficiently to explain how the light rail operation’s during the same times of day. assure safe operations over the at-grade systems safety plan addresses safety at

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Coordination Between FTA and FRA authority is a derivative of FTA’s conditions but will instead consist of Concerning Their Respective Regulatory program. periodic coordination with the state Roles As set forth in detail in this final agency (perhaps including joint Several commenters expressed policy statement, light rail operators inspection) to ensure FRA is aware of concern that if FRA requires transit intending to share use of the general any significant safety issues. FRA’s railroad system with conventional rail agencies to actively work in partnership involvement will vary with the degree equipment will either have to comply with FRA and the state regulatory of interface between the conventional with FRA’s safety rules or obtain a agency to address safety problems, a and transit operations. Should any waiver of appropriate rules. As FRA transit agency could be required to serious safety issues arise, especially noted on page 59058 of its proposed coordinate various aspects of its issues likely to impact conventional policy statement, whenever FRA grants operation with up to three different operations, FRA would become more or denies a petition for a waiver of its Federal and state agencies. In this actively involved, working closely with safety rules, it will indicate whether its the state oversight agency and FTA. The regard, San Diego Trolley stated that rules do not apply to any segments of nature of this coordination with the imposing such a requirement would the petitioning transit system’s state agency will vary somewhat lead to unnecessary duplication of effort operation so that it is clear where FTA’s depending on the working relationship and varying interpretations of rules, rules on rail fixed guideway systems (49 FRA develops with each state agency. regulations and procedures. The CFR part 659) apply. FTA will lend its good offices to California Transit Association During the course of the waiver promote that relationship. The greater (California Transit) commented that process, FRA will explain the transit FRA’s confidence in the will and ability since FRA’s jurisdiction is interpreted system operator’s compliance of the state agency to monitor the light very broadly, it is unclear how the responsibilities for all segments of its rail operation with regard to the safety potential overlap of FRA, FTA, and state operation and resolve ambiguities as to areas covered by waivers and keep FRA safety oversight jurisdiction will be which agency’s rules must be followed. informed, the less FRA will need to coordinated to avoid confusion and With regard to FRA rules where no become involved with those areas. duplicative efforts. California Transit waiver is issued, there will be no also stressed that since the state safety potential for confusion: FRA will The FRA Waiver Process oversight program is already in place in enforce and interpret its own rules. In FRA may grant a waiver of any rule California, it would be premature to the case of many of the regulations that or order only ‘‘if the waiver is in the consider expanding FRA’s role in transit FRA will likely waive, during its review public interest and consistent with operations. of the waiver petition FRA will analyze railroad safety.’’ 49 U.S.C. 20103(d). The FRA recognizes that light rail systems information submitted by the petitioner waiver petitions are reviewed by FRA’s that meet the definition of rapid transit to demonstrate that a particular safety Railroad Safety Board (Safety Board) and are planning to operate on the matter is addressed in a state system under the regulatory provisions of 49 general system, particularly those with safety plan and will be monitored by the CFR part 211. segments off the general system, will be state safety oversight program. Each waiver petition is considered on required to interact with FRA, FTA, and Assuming FRA is satisfied that effective its own merits, and the applicant is not state agencies. Were FRA to somehow implementation of such a plan has limited as to format or content, provided choose not to exercise its jurisdiction occurred, FRA may conclude that that the minimum procedural even over the shared use portion of adequate safety measures are in place to requirements of 49 CFR part 211 are these operations (which would warrant waiver of certain FRA rules. satisfied. The waiver process provides eventually require amendments to all of The transit system operator would then the applicant with wide latitude in its rules that apply to the general be subject to the state safety oversight discussing each of the specific safety system), these operators would still program in lieu of complying with these issues involved in the specific shared have to deal with FTA and the states. waived rules. use operation, and the opportunity to FRA has no intention of doing that, of The prospect of FRA’s continuing role help shape the conditions that FRA will course. On the other hand, were FRA to even in those areas where it has granted deem necessary to assure the safety of exercise jurisdiction over the non- a waiver seems to be the greatest the operation. Since FRA’s procedural shared-use portions of these rapid concern of some commenters who fear rules only give a general description of transit lines under theory that they are duplicative regulation. However, all what any waiver petition should contain connected to the general system, there involved need to understand that FRA’s (see 49 CFR 211.9), and are not would be no need to deal with FTA and issuance of a waiver does not constitute specifically tailored to situations the states. FRA has no intention of a relinquishment of its statutory involving light rail operations over the doing that, either, as it has made clear jurisdiction. Whenever FRA grants a general system, the proposed policy in its proposed statement and the waiver to a railroad, FRA continues to statement provided detailed suggestions proposed FRA/FTA joint statement. regulate that railroad and merely applies and guidance as to what general factors Accordingly, the light rail operator’s the standard embodied in the waiver in each petition should seek to address need to deal with three governments is place of the waived rule. A waiver may (these factors also appear in the final both a byproduct of FRA’s decision not be withdrawn or modified if its policy statement). to exercise jurisdiction as far as it may conditions are violated. In the situations possibly reach (i.e., to the non-shared- where FRA grants a waiver on the Use of the Term ‘‘Waiver’’ and use portions of rapid transit lines condition that the state safety oversight Alternatives to Waivers connected to the general system) and a program will address the safety issue, APTA commented that its member major reason for the issuance of the joint FRA will defer to the state agency to the organizations are concerned about the FRA/FTA policy statement. That is, one greatest degree possible, but will retain negative perception that the term of the purposes of that statement is to its jurisdiction. As to the regulations ‘‘waiver’’ creates at the local level, and explain how FRA and FTA intend to waived, this deference means that FRA’s requests that FRA instead describe the coordinate their respective authorities, involvement will not entail regular waiver process as ‘‘authorized use’’ and the state safety oversight agency’s inspection for adherence to the waiver subject to FRA review and approval.

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APTA stresses that the term ‘‘waiver’’ Given FRA’s statutory authority, standards, or even particular forms of implies the violation of a rule, and which includes providing the public simultaneous joint use that satisfy the carries an unnecessarily pejorative notice of, and opportunity to comment need to all but eliminate the risk of a connotation. on, the requested waiver before it is catastrophic collision) and to conform While FRA is sensitive to problems of granted, FRA cannot agree to eliminate certain of its rules to standards more perception, the agency urges all the formal review of waiver petitions by appropriate to the rapid transit concerned to help correct any mis- the Safety Board and, instead, simply environment. Such regulatory revision perceptions about the nature of a grant presumptive waivers to entire can take very long, and FRA’s waiver. As noted above, FRA may grant classes of light rail equipment and experience with these systems to date a waiver only if doing so ‘‘is in the operations without the benefit of full has not revealed patterns of similarities public interest and consistent with proceedings. FRA’s analysis of a waiver among active or proposed systems that railroad safety.’’ There is simply no petition provides it with a detailed would warrant new rules of general reasonable basis on which to construe a understanding of the overall level of applicability. However, the day will waiver petition as a request from the safety of a proposed operation, likely arrive when such rule revisions petitioner for formal permission to including consideration of the unique are in order. When completed, the new flagrantly violate the requirements of a operating conditions concerning each rules would obviate the need for waiver regulation, or to conclude that a transit operation (e.g., frequency and speeds of petitions on the part of any operation system receiving a waiver will be less all operations on the shared use that could comply with their terms. trackage, equipment specifications that safe than a conventional railroad that Submission, Review, and Processing of relate to the crash survivability of the operates in full compliance with FRA the Waiver Petition regulations. The publication of this light rail equipment). FRA does not Some commenters expressed concern policy statement and well constructed believe that an informal self- with the length of time required by FRA announcements by the petitioners of the certification by the light rail operator, to review and resolve each waiver granting of any waivers should help subject only to FRA review after the petition, and indicated that financial dispel any negative connotations that fact, would comport with FRA’s decisions involving the planning of a surround the use of the word ‘‘waiver’’ responsibilities under the law. light rail project often cannot be made in some localities. FRA will continue to Similarly, NJT’s suggestion that FRA until FRA determines the types of use the statutory term ‘‘waiver’’ to avoid simply not assert jurisdiction over conditions that would be necessary to any confusion as to the authority it is whole categories of general system permit granting of a waiver. FRA exercising. Of course, FRA has offered operations does not fit with FRA’s believes that encouraging applicants to the suggestion that, where shared use of concept of its safety role with regard to the general system operations or the text submit petitions that comprehensively track is contemplated, the petition be of FRA’s existing rules. Consistent with address each of the general factors set called a ‘‘Petition for Approval of the statutory definition of ‘‘railroad’’ at forth in the policy statement will lessen Shared Use.’’ FRA devised this term to 49 U.S.C. 20102, FRA will exercise the likelihood that FRA will require make these sorts of waiver petitions jurisdiction over any rapid transit supplemental information during its readily identifiable and to address the system that operates as a part of, or over review of the petition. If a petitioner concerns of those who dislike the term the lines of, the general railroad system submits a petition that specifies exactly ‘‘waiver.’’ of transportation, but only to the extent which rules are requested to be waived Moreover, APTA hopes that that it is connected to the general and explains precisely how a level of eventually FRA will classify certain system, not over the entire transit safety at least equal to that afforded by categories of equipment and operating system. Even where complete temporal the FRA rule will be provided by practices as ‘‘accepted,’’ rather than as separation exists, there are still safety alternative measures, FRA will be able ‘‘waivers’’ of its regulations, thereby issues (e.g., grade crossing safety and to expedite the waiver process. FRA is eliminating the need for the filing of accident reporting) concerning the light also willing to meet with transit agency most individual waiver requests. APTA rail operation that FRA can address only officials at an early stage in a project, recommends that FRA then merely by exercising its jurisdiction. Moreover, and may grant conditional approval of verify compliance with such accepted since all of FRA’s rules apply to waivers subject to future review of the practices through review and operations on the general system, any system safety plan to determine inspection. In the alternative, APTA categorical exemption of types of readiness to commence operations. asks FRA to consider ‘‘class waivers’’ or operations would require amendments As an additional means of a ‘‘presumptive waiver,’’ or perhaps to those rules. streamlining the waiver process, FRA’s permit self certification. Of course, petitioners interested in policy statement includes a rule-by-rule In a similar vein, NJT requests that, alternatives to the waiver process discussion of factors of great interest to rather than issuing a waiver, FRA should be aware of two possibilities. FRA in considering waiver requests decline to exercise jurisdiction over a First, to the extent that extremely concerning each rule. FRA is also temporally separated operation if the similar light rail systems are developed, including a detailed chart in the final transit agency implements a safe the waiver petition for one can provide policy statement that will assist operating plan, involving the use of a very helpful model for the later operators of rail transit operations on appropriate technology, and indicates system. As patterns like this emerge, the the general system that are completely that the operation is subject to an FTA- waiver process can become much less separated in time from conventional approved state safety oversight program. burdensome than it may be when each railroad operations, and that pose no NJT also recommends that FRA exempt new system is the first of its kind. atypical safety hazards. The chart lists transit agencies from even being Second, FRA could eventually amend each of FRA’s railroad safety rules and required to file waiver petitions if they its various rules to permit light rail states the likelihood of such light rail can demonstrate that adequate safety operations on the general railroad systems receiving waivers from measures are in place to eliminate the system under certain specified general compliance. safety risks posed by shared use conditions (e.g., temporal separation as As FRA noted in the proposed policy operations. ensured by meeting particular statement (as well as elsewhere in this

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To the extent protection will ensure that the different The NSWG urged FRA to grant that a waiver applicant can demonstrate types of equipment will not operate waivers for shared-use operations in that compliance with a state safety simultaneously on the same track, and perpetuity, subject to FRA’s authority to oversight program will satisfy FRA’s how protection will be provided to modify or withdraw a waiver if the safety concerns, this will likely expedite ensure that where one set of operations conditions imposed are not met or if FRA’s processing of the petition. begins and the other ends there will be unanticipated safety issues arise that no overlap that could result in a merit such action. In this regard, the Whether All Affected Railroads Must NSWG stated that transit systems likely Jointly File the Waiver Petition collision. Unless a petition thoroughly explains how the light rail operation to seek temporal separation waivers will Several commenters objected to FRA’s will interact with conventional seek them in connection with rail suggestion that the light rail operator operations on the line and documents projects funded in part with Federal ‘‘and all other affected railroads jointly the agreement of those other railroads to funds administered by FTA. Since FTA file’’ a petition for approval of shared any necessary safety arrangements to will require these transit systems to use. 64 FR 59050. In particular, APTA coordinate their operations with the demonstrate that they will have control argues that while the freight operator light rail operation, FRA is likely to of, and the ability to use, all of the assets should be made aware of the waiver conclude that the petition does not (e.g., the rail right-of-way and passenger application, with agreements reached to contain ‘‘sufficient information to vehicles) acquired with the Federal ensure a safe operating environment, it support the action sought.’’ 49 CFR funds for the 20 to 40 year useful life of is unnecessary to explicitly require the 211.9. As a condition of any waiver, the the assets, a five year limitation on the freight operator in all cases to approve conventional railroad must subscribe to duration of a waiver is, in NSWG’s the transit agency’s application. these responsibilities that are relevant to view, inadequate. FRA is mindful of the transit agency’s Moreover, APTA is concerned that such its operations in connection with the need for a degree of long-term certainty a requirement may give the freight shared use arrangement. Accordingly, operator unfair leverage in negotiations about the safety-related conditions that FRA’s policy statement suggests that the with the transit agency over shared-use may apply to its operation, and petition contain documentation of the operations on the general system. The recognizes that a rail project represents precise terms of the agreement between NSWG recommended adopting a a long term commitment of a transit the light rail operator and the procedure whereby the waiver applicant agency’s resources. However, FRA conventional railroad concerning any would have the burden to demonstrate cannot accept NSWG’s recommendation actions that the conventional railroad that all users had a clear understanding that the Safety Board issue waivers for must take to ensure effective of how operations will be conducted indefinite periods of time, since this implementation of alternative safety and how temporal separation would be would hinder FRA’s opportunity to measures. Of course, FRA will not grant strictly maintained. determine if circumstances have Based upon careful consideration of a waiver to a light rail operator that is changed or if issues have arisen that the comments, FRA is revising the final based on conditions concerning another were not contemplated when the relief policy statement to indicate that, while railroad’s operations without providing was last granted or renewed. FRA notes the conventional railroad(s) operating notice and an opportunity for a hearing, that the agency typically issues waivers on a line will always be an interested which will permit that other railroad to of limited duration and has not adopted party concerning a light rail operator’s fully explain its views. a unique policy here. FRA intends to waiver petition for shared use of the However, where the ‘‘other affected grant waivers for periods of sufficient general system, the conventional railroads’’ are legally responsible for length (e.g., five years) to permit long- operator need not be a joint filer. FRA’s compliance with the regulation sought term planning. Moreover, FTA is well rules on waiver petitions (49 CFR 211.7 to be waived by the light rail operator, aware of the reasons for FRA’s and 211.9) do not require joint filing, these other railroads must also petition reluctance to grant permanent waivers, and FRA’s suggestion of joint filing was for relief, whether jointly with the light and will not consider the need to renew not intended to alter the rules. However, rail operator or separately. For example, a safety waiver an indication that the while FRA will not require joint filing if a light rail operator is seeking a transit system lacks control of, and the as a prerequisite for evaluating the light waiver of the Signal System Reporting ability to use, its assets for their useful rail operator’s application, since FRA Requirements of 49 CFR part 233 but the life. expects the transit applicant to conventional railroad is currently While FRA retains the authority to thoroughly describe the alternative responsible for maintaining some of the modify or withdraw a waiver in the safety measures to be employed in lieu signal systems, both parties have interest of rail safety, such action is of each rule for which a waiver is compliance obligations concerning the generally limited to instances when sought, the input of the freight (or other light rail operation. In some areas, the FRA uncovers a substantial change in conventional) operator is imperative. freight operator will essentially be the conditions under which the waiver Accordingly, FRA anticipates that relieved of certain of its obligations if was granted or determines that a before a light rail operator submits a the light rail operator receives a waiver. significant unforeseen safety issue shared-use petition, the transit agency For example, FRA’s rule on passenger exists. FRA will ordinarily become will effectively communicate with the equipment generally makes a railroad aware of such developments during the affected freight or other railroad to liable for permitting the use or haul on term of the waiver through its coordinate interaction of the two its line of non-complying equipment. 49 coordination with the state safety operations on the same trackage, CFR 238.9. If the light rail operator agency that oversees the subjects on including what the respective hours of obtains a waiver for its equipment, that which FRA has granted waivers, and

VerDate 112000 15:24 Jul 07, 2000 Jkt 190000 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\10JYR6.SGM pfrm08 PsN: 10JYR6 42540 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations will work with the waiver recipient to applicant. Similarly, while FRA No. FRA–1999–6135. See 64 FR 45996 sufficiently address our safety concerns. provides its rail safety expertise to FTA (August 23, 1999). The second petition However, the renewal process will on safety issues inherent in FTA’s was submitted by the Utah Transit provide a periodic opportunity to review of rail grant proposals, FRA Authority (UTA) on August 19, 1999, determine if such important changes in cannot vote on FTA’s funding decisions, and was docketed as FRA Waiver circumstances have occurred. FRA does and it would not be appropriate for FRA Petition No. FRA–1999–6253. See 64 FR not view a waiver as a temporary to do so. FRA may have contributed to 53435 (October 1, 1999). Each docket measure that will jeopardize a rail some confusion on this issue by using includes a copy of the petition itself, the project’s continued operation once the the description ‘‘non-voting’’ without letter granting the petition, and a waiver expires. Rather, FRA expects to explaining how the Safety Board works. discussion of the waiver conditions. routinely renew waivers where the FRA’s Safety Board is not a collegial While these petitions may serve as conditions underlying the waiver have body like an independent agency; the useful examples for future waiver not changed substantially and no major chairperson of the board is the sole applicants to follow, FRA also expects unforeseen safety issues have arisen, deciding official and acts by delegation transit agencies to review the guidance and where FTA and the state safety from the Administrator. Other board included in this final policy statement oversight agency affirm that the members, all of whom are FRA staff, in conjunction with the regulatory operation is in compliance with FTA participate in the deliberations and offer requirements contained in 49 CFR part requirements. advice and counsel, but do not vote. 211. FRA granted each waiver for a Under FRA’s arrangement with FTA, the The Role of FTA in the Waiver Process period of five years, and conditioned FTA representative will have a voice in each waiver on the operator’s Four of the five commenters on this deliberations equal to that of FRA staff. submission for FRA approval of issue objected to the fact that FRA will In response to concerns from the procedures for ensuring temporal not permit FTA’s liaison to FRA’s Safety commenters that without an official vote separation. The NJT waiver was an Board to vote. The consensus of the FTA’s role with the Safety Board be example of FRA’s willingness to grant a commenters was that the proposed ineffective, FRA stresses that the reason waiver early in the planning process, approach will not effectively ensure that it is including an FTA official as an subject to conditions such as subsequent FTA’s knowledge and insights with invited participant in the consideration submission of evidence concerning state respect to transit operations, financial of Petitions for Approval of Shared Use approval of the system safety plan. issues, and state safety oversight are is to receive FTA’s, and through it, the adequately considered by the Safety transit industry’s perspective on the Operations Within Shared Rights-of- Board. The commenters believe that the many unique and complex issues Way two DOT agencies have different involving light rail operations. Since FRA received 11 comments on the perspectives on non-safety related FRA recognizes that its expertise is in issue of FRA’s jurisdiction over a light topics, and the best decisionmaking matters related to railroad safety, the rail transit operation sharing a right-of- between two parties with diverse agency wants FTA’s expert advice on way but no trackage with a conventional interests occurs with shared equal the facts presented in the petition railroad. In general, the commenters authority. However, the fifth concerning the project’s special request clarification in the final policy commenter, San Diego Trolley, stated characteristics and operating statements as to how FRA and FTA that while it would be inappropriate to considerations prior to selecting intend to coordinate their programs allow FTA to participate in voting on appropriate waiver conditions. Under with respect to a rail transit system that waiver applications, FTA’s FRA’s safety partnership with FTA, not operates within the same right-of-way as representative should have more direct only will FTA have the opportunity to conventional equipment, without authority in the decisionmaking shape the safety requirements that will shared trackage. Many of the process. apply to light rail operations on the Under delegation from the Secretary general system, but FTA will gain a commenters stress that any standards of Transportation, see 49 CFR 1.49, FRA fuller appreciation of the rail safety adopted by FRA for sharing the right-of- administers the Federal railroad safety issues involved in each shared-use way need to be as clear and explicit as statutes, and all waivers requested from operation considered by the Safety possible to assist the transit systems in FRA’s Safety Board involve exclusively Board. evaluating potential light rail projects FRA’s regulations. FTA is not charged and planning those deemed desirable. with administering the Federal railroad Examples of Two Petitions for Approval SEPTA believes that it is unnecessary safety laws. Rather, FTA is responsible of Shared Use Already Granted by FRA for FRA to assert jurisdiction over light for: developing comprehensive and Before FRA’s proposed policy rail operations running parallel to coordinated mass transportation statement was published in the Federal freight service because transit agency systems to serve metropolitan and other Register last November, the agency systems are covered under existing state urban areas; administering urban mass received two petitions for approval of safety oversight program plans. SEPTA transportation programs, including its shared use, both seeking waivers of states that the proposed joint policy rule on the safety of rail fixed guideway compliance with certain requirements of statement is unclear as to the limits of systems; and assuring appropriate the Federal railroad safety regulations FRA’s jurisdiction, other than to liaison and coordination with other and exemption of certain statutory indicate that FRA’s safety rules cover governmental organizations with respect provisions in connection with planned points of connection where a light rail to the foregoing. Since FTA’s statutory light rail systems. Transit agencies operation crosses the tracks of a freight authority does not include planning to request similar waivers and/ railroad at grade. In this regard, SEPTA administration of the Federal railroad or exemptions are encouraged to review seeks guidance as to what safety issues safety laws, it would be inappropriate the electronic dockets for these petitions FRA believes will exist where light rail and outside the scope of FTA’s legal as helpful examples in preparing their operations are conducted on separate authority if the FTA liaison to the Safety own submissions. The first petition was tracks within a shared right-of-way. The Board can veto the waiver conditions submitted by NJT on July 13, 1999, and commenter also notes that the policy that FRA elects to impose on an was docketed as FRA Waiver Petition statement doesn’t address the issue of

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All of FRA’s regulations apply to rights-of-way.’’ If the types of policy statements should be limited to such operations, absent a waiver. connections FRA has identified as scenarios where transit vehicles operate Therefore, how FRA exercises its triggering a limited exercise of its on or over the actual tracks of the jurisdiction in a corridor shared by light jurisdiction exist with regard to adjacent general system. However, APTA agrees rail and conventional equipment is an rapid transit and conventional lines, that the final policy statements should issue only if the light rail operation there is obviously a shared right-of-way. cover areas where there is no shared use meets the definition of urban rapid Where such operations take place on of general system track if the operations transit. The operation of rapid transit on parallel tracks but lack any such include public highway/rail grade track parallel to the tracks of a connections, there may still be a shared crossings or rail crossings at grade conventional railroad (i.e., parallel to right-of-way, but it has no regulatory (diamond interlockings). track traversed by freight, intercity significance. The AAR requests that FRA include a passenger, or commuter service) will Although FRA will limit its direct definition of the term ‘‘shared right-of- not, in and of itself, trigger FRA exercise of jurisdiction over transit way’’ in the final policy statement, and jurisdiction. Where a rapid transit line systems operating in shared rights-of- also recommends that FRA address merely shares a right-of-way with a way in the manner described above, shared right-of-way operations on a conventional line but the two share no FRA will, under the provisions of the case-by-case basis. In addition, the track, FRA does not consider that partnership agreement entered into with commenter states that intrusion situation to involve shared use of the FTA in October 1998, use its rail safety detectors are often appropriate in shared general system by the rapid transit line, expertise in an advisory capacity to rights of way, and notes that relevant and would not expect to receive a identify and make recommendations for factors to be considered include Petition for Approval of Shared Use. the resolution of safety issues inherent configuration of the right-of-way, Nevertheless, even when a rapid transit in grant proposals seeking Federal funds elevation changes, and track separation operation and a conventional railroad from FTA. This working relationship distances. share only a right-of-way, without will ensure that FTA has a fuller The NSWG urges FRA to issue further sharing trackage, certain limited understanding of the safety risks guidance as to the likelihood of waiver connections to the general system may involved in each shared right-of-way being granted in a shared right-of-way still exist, and FRA will then have a operation, and relevant information to situation where FRA has jurisdiction, regulatory role by ensuring safety at shape the contents of the system safety including a chart setting forth which these points of connection. Three types plan that will be monitored by the state regulations could presumptively be of connections are of greatest concern: safety oversight program. With respect waived. Also, the NSWG recommends highway/rail grade crossings, railroad to the specific comments received that FRA and FTA develop guidelines crossings at grade, and shared systems concerning the use of intrusion with respect to track center lines. For detectors and recommendations to FRA example, the joint policy statement of train control at specific points. For example, if the same tower about appropriate distances to require could state that transit trackage located between transit trackage and the closest 20 feet or more from the closest general operator authorizes and controls the movement of the trains of both a transit general system trackage, it would be system trackage, measured from center beyond the scope of this policy lines, normally would not require line and a freight railroad operating over a movable bridge, FRA will exercise statement to adopt regulations intrusion detection or extraordinary concerning track centers (the distance safety measures designed to avoid jurisdiction at this point of connection, but only to the extent necessary to between the center lines of adjacent collisions. tracks) or intrusion detection. FRA has San Diego Trolley contends that the ensure safety. We have discussed our no rules on these subjects now. Should proposal is unclear as to what intrusion exercise of jurisdiction over rail FRA deem it necessary to regulate detection steps will be required. The crossings at grade above, under the intrusion detectors and/or track commenter notes that while there is the heading of ‘‘Minor connections to the separation distances between transit and potential for derailments and other general railroad system’’ in the conventional equipment within a accidents to occur within a common discussion of comments on ‘‘Shared Use common right-of-way, FRA will initiate corridor, this condition exists at many and Temporal Separation.’’ Further, in a notice-and-comment rulemaking other locations where commuter rail, the case of a rapid transit system and a aimed at setting standards. In the intercity passenger services, or freight conventional railroad sharing a meantime, FRA and FTA will services operate within a common highway-rail grade crossing, FRA will coordinate with rapid transit agencies corridor. expect both systems to observe its rules The California Transit Association on grade crossing signals that, for and conventional railroads wherever commented that the proposal is unclear example, require prompt reports of there are concerns about sufficient as to the issue of FRA jurisdiction over warning system malfunctions, and, with intrusion detection and related safety shared rights-of-way. The commenter the exception for brightness of the lights measures designed to avoid a collision stated that the potential hazard of discussed below, will expect both between rapid transit and conventional intrusion in a shared corridor situation operations to observe its rules equipment. is better addressed by existing state concerning locomotive conspicuity Miscellaneous Comments safety oversight regulation and (ditch lights). If a rapid transit system appropriate safety analysis covered in desires a waiver of the very few FRA Employee Qualifications transit agency system safety program rules that will apply at these points of The BLE, the only commenter to plans. connection, it should file a waiver address this issue, limited its comments FRA appreciates the need for greater request tailored to the specific rule(s) in to waivers of 49 CFR part 240, because clarity with regard to shared rights-of- question rather than the much more of an overriding concern for the manner way. Several basic principles deserve comprehensive Petition for Approval of in which light rail vehicle operators are

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The system intends to operate allow whistle bans, at least at night, at commenter notes that the simultaneously on the same track with these four-quadrant gate system standardization fostered by part 240 has conventional equipment, FRA will not locations. enhanced safety in the railroad industry, be inclined to waive the part 240 FRA recently initiated a rulemaking and believes that the proposal retreats requirements. In that situation, FRA’s concerning the use of locomotive horns from the progress of the last decade with paramount concern would be at highway-rail grade crossings. On respect to operators of light rail uniformity of training and qualifications January 13, 2000, FRA published in the equipment. In this regard, the BLE of all those operating trains on the Federal Register a notice of proposed argues that a blanket waiver for light rail general system, regardless of the type of rulemaking to add a new part 222, vehicle operators from industry equipment. entitled ‘‘Use of Locomotive Horns at Public Highway-Rail Grade Crossings,’’ qualification and certification Ditch Lights requirements would fly in the face of to require that a locomotive horn be the standard articulated by FRA and The Delaware Valley Association of sounded while a train is approaching FTA. The operating environment in Rail Passengers supports most of the and entering a public highway-rail which light rail vehicle operators find proposals in the policy statement, crossing. 65 FR 2230. The proposed themselves, rather than the type of particularly the waiver concept. rules provide for an exception to the equipment they operate, must dictate However, the commenter believes that general requirement in circumstances in the appropriate degree of FRA oversight. waivers should not be granted under 49 which there is not a significant risk of Safety and consistency demand CFR part 229, pertaining to ditch lights loss of life or serious personal injury, continued Federal preemption in the (also known as auxiliary lights; see 49 use of the locomotive horn is area of training, qualification, and CFR 229.125, 133). Joint railroad-transit impractical, or supplementary safety certification of all transportation operations are often found in urban measures fully compensate for the employees who operate on the general areas with many grade crossings, and absence of the warning provided by the these lights have been proven to reduce system. horn. Among the proposed options collisions between trains and highway available to state and local governments FRA recognizes the safety traffic. Moreover, installation of such seeking to provide a substitute for the implications of permitting light rail lights on light rail vehicles is not locomotive horn in the prevention of vehicle operators to operate on the burdensome. collisions and casualties at public general system without receiving proper FRA shares the commenter’s safety highway-rail grade crossings, is the four- training and qualification. Waivers of concerns. As noted in the chart quadrant gate system. See proposed 49 the engineer certification requirements contained in each proposed policy CFR 222.41, 222.43, and Appendix A. would be most likely in the case of statement (explaining the likely Under this system, gates are installed at temporally-separated operations on the treatment of waivers sought under part a crossing which are sufficient to fully general system that are part of a unified 229), and in FRA’s discussion of likely block highway traffic from entering the transit system with segments outside the waivers under part 229, FRA is unlikely crossing when the gates are lowered, shared use area. There, the basic reason to completely waive the requirement for including at least one gate for each for a waiver would be to ensure that the auxiliary lights due to their importance direction of traffic on each approach. light rail operators are trained with the for grade crossing safety. See 64 FR at This policy statement has no entire light rail system in mind, 28241, 59053, and 59056. In this regard, relationship to that rulemaking. including its non-shared-use portions. FRA believes that the risk of accidents In those situations, however, FRA is at grade crossings decreases if the Definition of ‘‘Heavy Rail’’ particularly concerned about what equipment used by both conventional One commenter contends that FRA means of protection the waiver and light rail trains present the same improperly defines the terms ‘‘heavy applicant would use to ensure that distinctive profile to motor vehicle rail’’ and ‘‘light rail’’ in the proposed operator error does not result in operators approaching grade crossings policy statement. The commenter states different types of equipment being (i.e., a triangular arrangement of lights). that the term ‘‘heavy’’ has nothing to do operated on the same track, and how the Safety could be compromised if FRA with crashworthiness or car weight, but light rail system would ensure that permitted light rail systems to operate rather applies to the construction of the when one set of operations begins, and through the same grade crossings as right-of-way, and suggests that it would the other one ends, there can be no conventional equipment with light be clearer to use the terms ‘‘rail rapid overlap that would cause a collision. In arrangements that do not provide transit’’ for what is incorrectly called response to the comment, FRA stresses highway users with the same warning heavy rail, and ‘‘urban electric transit’’ that before a transit system could that a rail vehicle is approaching. for light rail. receive a waiver, it must satisfy FRA However, as discussed in the section Contrary to the commenter’s that the system safety plan developed below concerning factors to address statements, FRA’s proposal properly under FTA’s rules will provide for when seeking a waiver of part 229, distinguished between the terms ‘‘heavy operators of light rail equipment to waiver of the intensity requirement, so rail’’ and ‘‘light rail.’’ After observing receive the necessary training and skills as to permit lights of a lesser candela, that some current and planned to safely operate on the general system. seems appropriate. passenger operations in metropolitan The transit system would have the areas are often referred to as ‘‘light rail,’’ burden to show that the light rail Whistle Bans FRA indicated that the term usually operators would receive a level of The City of Boca Raton, Florida refers to lightweight passenger cars training, testing, and monitoring on the commented that FRA should develop operating on rails in a right-of-way that rules governing train operations rules to allow and promote the is not separated from other traffic, such

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The revised generally refers to trains operating on substantial portion’’ of a system’s policy statement merely reiterates this rails that are in separate rights-of-way operations is devoted to moving people point, recommends where such requests from which all other vehicular traffic is from station to station within a city, and should be submitted, and suggests that excluded, and observed that in transit to focus instead on whether such service requesting such determinations may be terms, heavy rail is also known as is a ‘‘primary function’’ of the system or a useful step to take well before filing ‘‘rapid rail,’’ ‘‘subway,’’ or ‘‘elevated ‘‘an incidental function’’ of its service. a waiver petition. railway.’’ FRA noted that conventional We are further revising the rail equipment such as that used by jurisdictional statement to facilitate Another subject of great interest to freight railroads, Amtrak, and many determinations about whether a system commenters was whether the light rail commuter railroads is different from, is a commuter railroad or urban rapid operator must always get the general and considerably heavier and transit system. We have included two system railroad to join in any petition structurally stronger than either light or presumptions, one that adopts statutory for waiver or approval of shared use. heavy rail equipment, as those terms are determinations of a system’s Our proposed statement included a used in the transit industry. FRA characterization, and the other that request that the light rail operator and advised that although this equipment is presumes a system is rapid transit if it ‘‘all other affected railroads’’ file the sometimes referred to as ‘‘heavy’’ rail, it meets a certain description. Where petition jointly. In the discussion of would use the term ‘‘conventional’’ to neither presumption applies, we have comments, above, we explained why avoid confusion between the different provided a list of criteria that need to be this would be very useful but is not ways ‘‘heavy’’ is used in the transit and considered in making the commuter/ required, and pointed out that other general railroad communities. rapid transit determination. affected railroads may need to file their FRA is also revising its statement of own petitions if the planned operations II. Changes From the Proposed policy to make clear that highway-rail somehow preclude their compliance Statement of Policy Concerning the grade crossings used by both a Extent and Exercise of FRA’S Safety conventional railroad and a light rail with FRA’s rules. Even if they do not Jurisdiction Over Passenger Operations operation provide a sufficient need to file a petition, of course, all To ensure that the regulated connection to warrant a limited exercise affected railroads will have an community is fully aware of how FRA of FRA’s jurisdiction over the light rail opportunity to comment and appear at views the extent of its jurisdiction over operator. In the proposal, that point was any hearing that is requested on the passenger operations and how it intends made, but under a heading concerning light rail operator’s petition. Our final to exercise that jurisdiction, FRA is connections not sufficient to trigger the policy statement explains these points. amending the discussion of its exercise of jurisdiction. The final policy Many commenters indicated the need jurisdiction in its Statement of Agency statement places the discussion more for greater clarity in FRA’s policy Policy Concerning Enforcement of the appropriately and slightly expands it. concerning situations where the light Federal Railroad Safety Laws, which is III. Changes to Proposed Policy rail operator and conventional railroad found in at appendix A of 49 CFR part Concerning Petitions for Approval of do not share trackage but have 209. In its proposed policy, FRA Shared Use of the General System by operations that are otherwise included an extensive discussion of its Light Rail and Other Railroads legal authority over railroad safety, sufficiently connected to warrant a including the extensive legislative Much of FRA’s proposed statement of limited exercise of FRA’s jurisdiction. history of the term ‘‘railroad’’ as used in policy concerned how the agency FRA has included a more thorough the Federal railroad safety statutes. 64 intended to address waiver requests discussion of this subject to the final FR 59047–59049. FRA does not repeat concerning shared use of the general policy statement. The statement makes that discussion here, but incorporates it system by light rail and conventional clear that, where minimal connections by reference as the basis for its policy operations. FRA provided guidance on exist in a common right-of-way (even on the extent and exercise of its how interested parties could file such where the two operations use their jurisdiction over passenger operations. waiver requests, what they should respective tracks simultaneously), the Based on comments received, FRA is address, and what waivers are likely light rail operator will be subject to only making some changes to its proposed under particular circumstances. FRA those safety rules pertinent to the policy. The definition of ‘‘commuter has amended its policy to reflect various connection that exists, and that any railroad’’ is being amended to make comments received on the proposal. waiver request should be limited to just clear that certain specific operations Moreover, FRA has concluded that this those rules. named as commuter authorities by policy, like its policy on the extent and statute are considered commuter exercise of its safety jurisdiction, should The new Appendix A to part 211, railroads under the safety laws reside in the CFR for easy future therefore, will include a discussion of regardless of how the criteria that reference. Therefore, we are adding a which railroads need to file waiver distinguish other railroads as new appendix to 49 CFR part 211, petitions in shared use or shared right- ‘‘commuter’’ in nature may apply to which contains FRA’s rules of practice, of-way situations, the general factors them. FRA believes this change is including those concerning waivers. that should be addressed in a Petition necessary in order to ensure that Several commenters requested that for Approval of Shared Use, general railroads that Congress considers FRA provide a means by which those considerations concerning petitions for commuter railroads are within FRA’s developing light rail systems could waiver where the right-of-way is shared exercise of its jurisdiction without the obtain a jurisdictional determination but the connections are limited, factors need for extensive debate about the from FRA without first preparing an to address in any petition concerning nature of their operations. entire waiver petition. This makes good specific rules, and the areas where For reasons explained in the sense, because an early jurisdictional waivers are likely in shared use discussion of comments, we are also determination could affect planning for situations (including a chart). revising the definitions of ‘‘commuter a system in significant ways. Of course,

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List of Subjects physical connection to the system does not Within the limits imposed by this authority, bring trackage within it. For example, FRA exercises jurisdiction over all railroad 49 CFR Part 209 trackage within an industrial installation that passenger operations, regardless of the Railroad safety, Enforcement is connected to the network only by a switch equipment they use, unless FRA has Procedures. for the receipt of shipments over the system specifically stated below an exception to its is not a part of the system. exercise of jurisdiction for a particular type 49 CFR Part 211 Moreover, portions of the network may of operation. This policy is stated in general lack a physical connection but still be part Railroad safety, Rules of Practice. terms and does not change the reach of any of the system by virtue of the nature of particular regulation under its applicability The Policy Statement operations that take place there. For example, section. That is, while FRA may generally the Alaska Railroad is not physically In consideration of the foregoing, assert jurisdiction over a type of operation connected to the rest of the general system here, a particular regulation may exclude that chapter II, subtitle B of title 49, Code of but is part of it. The Alaska Railroad kind of operation from its reach. Therefore, Federal Regulations is amended as exchanges freight cars with other railroads by this statement should be read in conjunction follows: car float and exchanges passengers with with the applicability sections of all of FRA’s interstate carriers as part of the general flow regulations. PART 209Ð[AMENDED] of interstate commerce. Similarly, an intercity high speed rail system with its own Intercity Passenger Operations 1. The authority citation for part 209 right of way would be part of the general FRA exercises jurisdiction over all intercity is revised to read as follows: system although not physically connected to passenger operations. Because of the nature Authority: 49 U.S.C. 20103, 20107, 20111, it. The presence on a rail line of any of these of the service they provide, standard gage 20112, 20114, and 49 CFR 1.49. types of railroad operations is a sure intercity operations are all considered part of indication that such trackage is part of the Appendix A to 49 CFR part 209 is the general railroad system, even if not general system: the movement of freight cars amended as follows. physically connected to other portions of the in trains outside the confines of an industrial system. Other intercity passenger operations Appendix A—Statement of Agency installation, the movement of intercity that are not standard gage (such as a magnetic Policy Concerning Enforcement of the passenger trains, or the movement of levitation system) are within FRA’s Federal Railroad Safety Laws commuter trains within a metropolitan or jurisdiction even though not part of the suburban area. Urban rapid transit operations general system. 2. The title of Appendix A is revised are ordinarily not part of the general system, to read, as set forth above. but may have sufficient connections to that Commuter Operations 3. Under the heading ‘‘The Extent and system to warrant exercise of FRA’s FRA exercises jurisdiction over all Exercise of FRA’s Safety Jurisdiction,’’ jurisdiction (see discussion of passenger commuter operations. Congress apparently the seventh paragraph (which begins, operations, below). Tourist railroad intended that FRA do so when it enacted the operations are not inherently part of the ‘‘For example, all of FRA’s regulations’’) Federal Railroad Safety Act of 1970, and general system and, unless operated over the made that intention very clear in the 1982 of the appendix is removed, and the lines of that system, are subject to few of following paragraphs are added in its and 1988 amendments to that act. FRA has FRA’s regulations. attempted to follow that mandate place: The boundaries of the general system are consistently. A commuter system’s The Extent and Exercise of FRA’s Safety not static. For example, a portion of the connection to other railroads is not relevant Jurisdiction system may be purchased for the exclusive under the rail safety statutes. In fact, FRA use of a single private entity and all considers commuter railroads to be part of * * * * * connections, save perhaps a switch for For example, all of FRA’s regulations the general railroad system regardless of such receiving shipments, severed. Depending on connections. exclude from their reach railroads whose the nature of the operations, this could entire operations are confined to an FRA will presume that an operation is a remove that portion from the general system. commuter railroad if there is a statutory industrial installation (i.e., ‘‘plant railroads’’), The system may also grow, as with the such as those in steel mills that do not go determination that Congress considers a establishment of intercity service on a brand particular service to be commuter rail. For beyond the plant’s boundaries. E.g., 49 CFR new line. However, the same trackage cannot example, in the Northeast Rail Service Act of 225.3(a)(1) (accident reporting regulations). be both inside and outside of the general 1981, 45 U.S.C. 1104(3), Congress listed Some rules exclude passenger operations that system depending upon the time of day. If specific commuter authorities. If that are not part of the general railroad system trackage is part of the general system, presumption does not apply, and the (such as some tourist railroads) only if they restricting a certain type of traffic over that operation does not meet the description of a meet the definition of ‘‘insular.’’ E.g., 49 CFR trackage to a particular portion of the day system that is presumptively urban rapid 225.3(a)(3) (accident reporting) and 234.3(c) does not change the nature of the line—it transit (see below), FRA will determine (grade crossing signal safety). Other remains the general system. regulations exclude not only plant railroads whether a system is commuter or urban rapid but all other railroads that are not operated 4. Appendix A to 49 CFR part 209 is transit by analyzing all of the system’s as a part of, or over the lines of, the general further amended by adding the pertinent facts. FRA is likely to consider an railroad system of transportation. E.g., 49 following paragraphs immediately operation to be a commuter railroad if: CFR 214.3 (railroad workplace safety). before the section called ‘‘Extraordinary • The system serves an urban area, its By ‘‘general railroad system of Remedies:’’ suburbs, and more distant outlying transportation,’’ FRA refers to the network of communities in the greater metropolitan area, standard gage track over which goods may be FRA’s Policy on Jurisdiction Over Passenger • The system’s primary function is moving transported throughout the nation and Operations passengers back and forth between their passengers may travel between cities and Under the Federal railroad safety laws, places of employment in the city and their within metropolitan and suburban areas. FRA has jurisdiction over all railroads except homes within the greater metropolitan area, Much of this network is interconnected, so ‘‘rapid transit operations in an urban area and moving passengers from station to that a rail vehicle can travel across the nation that are not connected to the general railroad station within the immediate urban area is, without leaving the system. However, mere system of transportation.’’ 49 U.S.C. 20102. at most, an incidental function, and

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• The vast bulk of the system’s trains are commuters as one of its major functions system. For example, a rapid transit line operated in the morning and evening peak without being considered a commuter that operates over the general system for periods with few trains at other hours. railroad), and a portion of its length but has significant Examples of commuter railroads include • The system provides frequent train portions of street railway that are not Metra and the Northern Indiana Commuter service even outside the morning and Transportation District in the Chicago area; used by conventional railroads would Virginia Railway Express and MARC in the evening peak periods. be subject to FRA’s rules only with Washington area; and Metro-North, the Long Examples of urban rapid transit respect to the general system portion. Island Railroad, New Jersey Transit, and the systems include the Metro in the The remaining portions would not be Washington, D.C. area, CTA in Chicago, Port Authority Trans Hudson (PATH) in the subject to FRA’s rules. If the non-general and the subway systems in New York, New York area. system portions of the rapid transit line Boston, and Philadelphia. The type of Other Short Haul Passenger Service equipment used by such a system is not are considered a ‘‘rail fixed guideway The federal railroad safety statutes determinative of its status. However, the system’’ under 49 CFR Part 659, those give FRA authority over ‘‘commuter or kinds of vehicles ordinarily associated rules, issued by the Federal Transit other short-haul railroad passenger with street railways, trolleys, subways, Administration (FTA), would apply to service in a metropolitan or suburban and elevated railways are the types of them. area.’’ 49 U.S.C. 20102. This means that, vehicles most often used for urban rapid Another connection to the general in addition to commuter service, there transit operations. system sufficient to warrant FRA’s are other short-haul types of service that FRA can exercise jurisdiction over a exercise of jurisdiction is a railroad Congress intended that FRA reach. For rapid transit operation only if it is crossing at grade where the rapid transit example, a passenger system designed connected to the general railroad operation and other railroad cross each primarily to move intercity travelers system, but need not exercise other’s tracks. In this situation, FRA will from a downtown area to an airport, or jurisdiction over every such operation exercise its jurisdiction sufficiently to from an airport to a resort area, would that is so connected. FRA is aware of assure safe operations over the at-grade be one that does not have the several different ways that rapid transit railroad crossing. FRA will also exercise operations can be connected to the transportation of commuters within a jurisdiction to a limited extent over a general system. Our policy on the metropolitan area as its primary rapid transit operation that, while not exercise of jurisdiction will depend purpose. FRA would ordinarily exercise operated on the same tracks as the jurisdiction over such a system as upon the nature of the connection(s). In conventional railroad, is connected to ‘‘other short-haul service’’ unless it general, a connection that involves the general system by virtue of operating meets the definition of urban rapid operation of transit equipment as a part in a shared right-of-way involving joint transit and is not connected in a of, or over the lines of, the general significant way to the general system. system will trigger FRA’s exercise of control of trains. For example, if a rapid jurisdiction. Below, we review some of transit line and freight railroad were to Urban Rapid Transit Operations the more common types of connections operate over a movable bridge and were One type of short-haul passenger and their effect on the agency’s exercise subject to the same authority concerning service requires special treatment under of jurisdiction. This is not meant to be its use (e.g., the same tower operator the safety statutes: ‘‘rapid transit an exhaustive list of connections. controls trains of both operations), FRA operations in an urban area.’’ Only these will exercise jurisdiction in a manner Rapid Transit Connections Sufficient to sufficient to ensure safety at this point operations are excluded from FRA’s Trigger FRA’s Exercise of Jurisdiction jurisdiction, and only if they are ‘‘not of connection. Also, where transit connected to the general railroad Certain types of connections to the operations share highway-rail grade system.’’ FRA will presume that an general railroad system will cause FRA crossings with conventional railroads, operation is an urban rapid transit to exercise jurisdiction over the rapid FRA expects both systems to observe its operation if the system is not transit line to the extent it is connected. signal rules. For example, FRA expects presumptively a commuter railroad (see FRA will exercise jurisdiction over the both railroads to observe the provision discussion above) the operation is a portion of a rapid transit operation that of its rule on grade crossing signals that subway or elevated operation with its is conducted as a part of or over the requires prompt reports of warning own track system on which no other lines of the general system. For system malfunctions. See 49 CFR part railroad may operate, has no highway- example, rapid transit operations are 234. FRA believes these connections rail crossings at grade, operates within conducted on the lines of the general present sufficient intermingling of the an urban area, and moves passengers system where the rapid transit operation rapid transit and general system and other railroad use the same track. from station to station within the urban operations to pose significant hazards to FRA will exercise its jurisdiction over area as one of its major functions. one or both operations and, in the case the operations conducted on the general Where neither the commuter railroad of highway-rail grade crossings, to the system. In situations involving joint use nor urban rapid transit presumptions motoring public. The safety of highway of the same track, it does not matter that applies, FRA will look at all of the facts users of highway-rail grade crossings the rapid transit operation occupies the pertinent to a particular operation to can best be protected if they get the determine its proper characterization. track only at times when the freight, commuter, or intercity passenger same signals concerning the presence of FRA is likely to consider an operation any rail vehicles at the crossing and if to be urban rapid transit if: railroad that shares the track is not they can react the same way to all rail • The operation serves an urban area operating. While such time separation (and may also serve its suburbs), could provide the basis for waiver of vehicles. • Moving passengers from station to certain of FRA’s rules (see 49 CFR part Rapid Transit Connections Not station within the urban boundaries is a 211), it does not mean that FRA will not Sufficient to Trigger FRA’s Exercise of major function of the system and there exercise jurisdiction. However, FRA Jurisdiction are multiple station stops within the will exercise jurisdiction over only the city for that purpose (such an operation portions of the rapid transit operation Although FRA could exercise could still have the transportation of that are conducted on the general jurisdiction over a rapid transit

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Where shared use of general for receiving shipments from the general transit operation petitions FRA for a system trackage is contemplated, FRA system railroad is not one over which waiver of its safety rules. In granting or believes a comprehensive waiver request FRA would assert jurisdiction. This denying any such waiver, FRA will covering all rules for which a waiver is assumes that the switch is used only for make clear whether its rules do not sought makes the most sense. FRA suggests that purpose. In that case, any entry apply to any segments of the operation that a petitioner caption such a waiver onto the rapid transit line by the freight so that it is clear where FTA’s rules do petition as a Petition for Approval of Shared railroad would be for a very short apply. Use so as to distinguish it from other types distance and solely for the purpose of 5. The authority citation for part 211 of waiver petitions. The light rail operator dropping off or picking up cars. In this is revised to read as follows: should file the petition. All other affected railroads will be able to participate in the situation, the rapid transit line is in the Authority: 49 U.S.C. 20103, 20107, 20114, waiver proceedings by commenting on the same situation as any shipper or 20306, 20502–20504, and 49 CFR 1.49. petition and providing testimony at a hearing consignee; without this sort of on the petition if anyone requests such a connection, it cannot receive or offer Appendix A hearing. If any other railroad will be affected goods by rail. 6. A new Appendix A is added to part by the proposed operation in such a way as Mere use of a common right-of-way or 211 to read as follows. to necessitate a waiver of any FRA rule, that corridor in which the conventional railroad may either join with the light rail railroad and rapid transit operation do Appendix A to Part 211—Statement of operator in filing the comprehensive petition not share any means of train control, Agency Policy Concerning Waivers or file its own petition. have a rail crossing at grade, or operate Related to Shared Use of Trackage or 5. In situations where the light rail operator is an urban rapid transit system that will over the same highway-rail grade Rights-of-Way by Light Rail and Conventional Operations share a right-of-way or corridor with the crossings would not trigger FRA’s conventional railroad but not share trackage, exercise of jurisdiction. In this context, 1. By statute, the Federal Railroad any waiver petition should cover only the the presence of intrusion detection Administration (FRA) may grant a waiver of rules that may apply at any significant points devices to alert one or both carriers to any rule or order if the waiver ‘‘is in the of connection between the rapid transit line incursions by the other one would not public interest and consistent with railroad and the other railroad. A Petition for be considered a means of common train safety.’’ 49 U.S.C. 20103(d). Waiver petitions Approval of Shared Use would not be control. These common rights of way are reviewed by FRA’s Railroad Safety Board appropriate in such a case. (the ‘‘Safety Board’’) under the provisions of are often designed so that the two I. Preliminary Jurisdictional Determinations systems function completely 49 CFR part 211. Waiver petitions must contain the information required by 49 CFR Where a light rail operator is uncertain independently of each other. FRA and 211.9. The Safety Board can, in granting a whether the planned operation will be FTA will coordinate with rapid transit waiver, impose any conditions it concludes subject to FRA’s safety jurisdiction and, if so, agencies and railroads wherever there are necessary to assure safety or are in the to what extent, the operator may wish to are concerns about sufficient intrusion public interest. If the conditions under which obtain FRA’s views on the jurisdictional detection and related safety measures the waiver was granted change substantially, issues before filing a waiver petition. In that designed to avoid a collision between or unanticipated safety issues arise, FRA may case, the light rail operator (here including a rapid transit trains and conventional modify or withdraw a waiver in order to transit authority that may not plan to actually equipment. ensure safety. operate the system itself) should write to Where these very minimal 2. Light rail equipment, commonly referred FRA requesting such a determination. The to as trolleys or street railways, is not connections exist, FRA will not exercise letter should be addressed to Chief Counsel, designed to be used in situations where there Federal Railroad Administration, 1120 jurisdiction unless and until an is a reasonable likelihood of a collision with Vermont Ave., NW., Mail Stop 10, emergency situation arises involving much heavier and stronger conventional rail Washington, DC 20590, with a copy to the such a connection, which is a very equipment. However, existing conventional Associate Administrator for Safety at the unlikely event. However, if such a railroad tracks and rights-of-way provide same address at Mail Stop 25. The letter system is properly considered a rail attractive opportunities for expansion of light should address the criteria (found in 49 CFR fixed guideway system, FTA’s rules (49 rail service. part 209, appendix A) FRA uses to determine CFR part 659) will apply to it. 3. Light rail operators who intend to share whether it has jurisdiction over a rail use of the general railroad system trackage operation and to distinguish commuter from Coordination of the FRA and FTA with conventional equipment and/or whose urban rapid transit service. A complete Programs operations constitute commuter service (see description of the nature of the contemplated Appendix A of 49 CFR part 209 for relevant FTA’s rules on rail fixed guideway operation is essential to an accurate definitions) will either have to comply with determination. FRA will attempt to respond systems (49 CFR part 659) apply to any FRA’s safety rules or obtain a waiver of promptly to such a request. Of course, FRA’s rapid transit systems or portions thereof appropriate rules. Light rail operators whose response will be based only on the facts as not subject to FRA’s rules. On rapid operations meet the definition of urban rapid presented by the light rail operator. If FRA transit systems that are not sufficiently transit and who will share a right-of-way or subsequently learns that the facts are connected to the general railroad system corridor with a conventional railroad but will different from those presented or have to warrant FRA’s exercise of jurisdiction not share trackage with that railroad will be changed substantially, FRA may revise its (as explained above), FTA’s rules will subject to only those rules that pertain to any initial determination. apply exclusively. On those rapid significant point of connection to the general system, such as a rail crossing at grade, a II. General Factors to Address in a Petition transit systems that are connected to the shared method of train control, or shared for Approval of Shared Use general system in such a way as warrant highway-rail grade crossings. 1. Like all waiver petitions, a Petition for exercise of FRA’s jurisdiction, only 4. Shared use of track refers to situations Approval of Shared Use will be reviewed by those portions of the rapid transit where light rail transit operators conduct the Safety Board. A non-voting FTA liaison system that are connected to the general their operations over the lines of the general to the Safety Board will participate in an

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This close a steep burden of demonstrating that rail operator’s system safety plan. cooperation between the two agencies will extraordinary safety measures will be taken Alternately, conditional approval may be ensure that FRA benefits from the insights, to adequately reduce the likelihood of a requested at an early stage in the project, and particularly with regard to operational and collision between conventional and light rail FRA would thereafter review the system financial issues, that FTA can provide about equipment to the point where the safety risks safety program plan’s status to determine light rail operations, as well as from FTA’s associated with joint use would be readiness to commence operations. Where knowledge of and contacts with state safety acceptable. You should explain the nature of FRA grants a waiver, the state agency will oversight programs. This working such simultaneous joint use, the system of oversee the area addressed by the waiver, but relationship will also ensure that FTA has a train control, the frequency and proximity of FRA will actively participate in partnership fuller appreciation of the safety issues both types of operations, the training and with FTA and the state agency to address any involved in each specific shared use qualifications of all operating personnel in safety problems. operation and a voice in shaping the safety both types of operations, and all methods D. Documentation of agreement with requirements that will apply to such that would be used to prevent collisions. You affected railroads. Conventional railroads operations. should also include a quantitative risk that will share track with the light rail 2. FRA resolves each waiver request on its assessment concerning the risk of collision operation need not join as a co-petitioner in own merits based on the information between the light rail and conventional the light rail operator’s petition. However, presented and the agency’s own investigation equipment under the proposed operating the petition should contain documentation of of the issues. In general, the greater the safety scenario. the precise terms of the agreement between risks inherent in a proposed operation the B. Description of equipment. (1) You the light rail operator and the conventional greater will be the mitigation measures should describe all equipment that will be railroad concerning any actions that the required. While FRA cannot state in advance used by the light rail and conventional conventional railroad must take to ensure what kinds of waivers will be granted or operations. Where the light rail equipment effective implementation of alternative safety denied, we can provide guidance to those does not meet the standards of 49 CFR part measures. For example, if temporal who may likely be requesting waivers to help 238, you should provide specifics on the separation is planned, FRA expects to see the ensure that their petitions address factors crash survivability of the light rail conventional railroad’s written acceptance of that FRA will no doubt consider important. equipment, such as static end strength, sill its obligations to ensure that the separation 3. FRA’s procedural rules give a general height, strength of corner posts and collision is achieved. Moreover, if the arrangements description of what any waiver petition posts, side strength, etc. for the light rail service will require the should contain, including an explanation of (2) Given the structural incompatibility of conventional railroad to employ any the nature and extent of the relief sought; a light rail and conventional equipment, FRA alternative safety measures rather than description of the persons, equipment, has grave concerns about the prospect of strictly comply with FRA’s rules, that installations, and locations to be covered by operating these two types of equipment railroad will have to seek its own waiver (or the waiver; an evaluation of expected costs simultaneously on the same track. If the light join in the light rail operator’s petition). and benefits; and relevant safety data. 49 CFR rail and conventional operations will share 211.9. The procedural rules, of course, are trackage during the same time periods, you III. Waiver Petitions Involving No Shared not specifically tailored to situations should provide an engineering analysis of the Use of Track and Limited Connections involving light rail operations over the light rail equipment’s resistance to damage in Between Light Rail and Conventional general system, where waiver petitions are various types of collisions, including a worst Operations likely to involve many of FRA’s regulatory case scenario involving a failure of the Even where there is no shared use of track, areas. In such situations, FRA suggests that collision avoidance systems resulting in a light rail operators may be subject to certain a Petition for Approval of Shared Use address collision between light rail and conventional FRA rules based on limited, but significant the following general factors. equipment at track speeds. connections to the general system. A. Description of operations. You should C. Alternative safety measures to be 1. Rail crossings at grade. Where a light rail explain the frequency and speeds of all employed in place of each rule for which operation and a conventional railroad have a operations on the line and the nature of the waiver is sought. The petition should specify crossing at grade, several FRA rules may different operations. You should explain the exactly which rules the petitioner desires to apply to the light rail operation at the point nature of any connections between the light be waived. For each rule, the petition should of connection. If movements at the crossing rail and conventional operations. explain exactly how a level of safety at least are governed by a signal system, FRA’s signal • If the light rail line will operate on any equal to that afforded by the FRA rule will rules (49 CFR parts 233, 235, and 236) apply, segments (e.g., a street railway portion) that be provided by the alternative measures the as do the signal provisions of the hours of will not be shared by a conventional railroad, petitioner proposes. service statute, 49 U.S.C. 21104. To the describe those segments and their connection (1) Most light rail operations that entail extent radio communication is used to direct with the shared use segments. If the some shared use of the general system will the movements, the radio rules (part 220) petitioner has not previously sought and also have segments that are not on the apply. The track rules (part 213) cover any received a determination from FRA general system. FTA’s rules on rail fixed portion of the crossing that may affect the concerning jurisdictional issues, explain, guideway systems will probably apply to movement of the conventional railroad. Of using the criteria set out in 49 CFR part 209, those other segments. If so, the petition for course, if the conventional railroad has Appendix A, whether the light rail operation waiver of FRA’s rules should explain how responsibility for compliance with certain of is, in the petitioner’s view, a commuter the system safety program plan adopted the rules that apply at that point (for operation or urban rapid transit. under FTA’s rules may affect safety on the example, where the conventional railroad • You should describe precisely what the portions of the system where FRA’s rules maintains the track and signals and respective hours of operation will be for each apply. Under certain circumstances, effective dispatches all trains), the light rail operator type of equipment on the shared use implementation of such a plan may provide will not have compliance responsibility for segments. If light rail and conventional FRA sufficient assurance that adequate those rules and would not need a waiver. operations will occur only at different times measures are in place to warrant waiver of 2. Shared train control systems. Where a of day, describe what means of protection certain FRA rules. light rail operation is governed by the same will ensure that the different types of (2) In its petition, the light rail operator train control system as a conventional equipment are not operated simultaneously may want to certify that the subject matter railroad (e.g., at a moveable bridge that they on the same track, and how protection will addressed by the rule to be waived is both traverse), the light rail operator will be be provided to ensure that, where one set of addressed by the system safety plan and that subject to applicable FRA rules (primarily the operations begins and the other ends, there the light rail operation will be monitored by signal rules in parts 233, 235, and 236) if it can be no overlap that would possibly result the state safety oversight program. That is has maintenance or operating responsibility in a collision. likely to expedite FRA’s processing of the for the system. • If the light rail and conventional petition. FRA will analyze information 3. Highway-Rail Grade Crossings. Light rail operations will share trackage during the submitted by the petitioner to demonstrate operations over highway-rail grade crossings

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Standards for signal and train control the light rail operation will still be failures by notifying the conventional systems (part 236). This part contains rules, responsible for reporting and taking railroad of such failures. standards, and instructions governing the appropriate actions in response to warning C. Grade crossing signal system safety (part installation, inspection, maintenance, and system malfunctions. 234). This part contains minimum standards repair of signal and train control systems, In any of these shared right-of-way for the maintenance, inspection, and testing devices, and appliances. In the case of a situations involving significant connections, of highway-rail grade crossing warning signal system located on general system track the light rail operator may petition for a systems, and also prescribes standards for the which is used by both conventional and light waiver of any rules that apply to its activities. reporting of system failures and minimum rail lines, a light rail operation is subject to actions that railroads must take when such this part only if it (or a contractor hired by IV. Factors to Address Related to Specific warning systems malfunction. If a grade the operation) owns or has responsibility for Regulations and Statutes crossing accident or warning activation installing, inspecting, maintaining, and Operators of light rail systems are likely to failure occurs during light rail operations on repairing the signal system. If the light rail apply for waivers of many FRA rules. FRA general system track that is used by both operation has these responsibilities, a waiver offers the following suggestions on factors conventional and light rail lines, the light rail would be unlikely because a signal failure petitioners may want to address concerning operator must submit, or cooperate with the would jeopardize the safety of both the light specific areas of regulation. (All ‘‘part’’ other railroad to ensure the submission of, a rail operation and the conventional railroad. references are to title 49 CFR.) Parts 209 report to FRA within the required time frame If the conventional railroad assumes all of the (Railroad Safety Enforcement Procedures), (24 hours for an accident report, or 15 days responsibilities under this part, the light rail 211 (Rules of Practice), 212 (State Safety for a grade crossing signal system activation operation would not need a waiver, but it Participation), and 216 (Special Notice and failure report). The petition should explain would have to abide by all operational Emergency Order Procedures) are largely whether the light rail operator or limitations imposed this part and by the procedural rules that are unlikely to be the conventional railroad is responsible for conventional railroad. The petition should subject of waivers, so those parts are not maintaining the grade crossing devices. discuss whether the light rail operator or discussed further. For segments of a light rail Assuming that the light rail operator (or a conventional railroad has responsibility for line not involving operations over the general contractor hired by this operator) has installing, inspecting, maintaining, and system, assuming the light rail operation responsibility for maintaining the grade repairing the signal system. 2. meets the definition of ‘‘rapid transit,’’ FRA’s crossing devices, that entity is the logical 2. Motive power and equipment. standards do not apply and the petition need choice to file each grade crossing signal not address those segments with regard to failure report, and a waiver is very unlikely. A. Railroad noise emission compliance each specific rule from which waivers are Moreover, since a grade crossing warning regulations (part 210). FRA issued this rule sought with regard to shared use trackage. device failure first observed by a light rail under the Noise Control Act of 1972, 42 operator can later have catastrophic U.S.C. 4916, rather than under its railroad 1. Track, structures, and signals. consequences for a conventional railroad safety authority. Because that statute A. Track safety standards (part 213). For using the same track, a waiver would included a definition of ‘‘railroad’’ borrowed general system track used by both the jeopardize rail safety on that general system from one of the older railroad safety laws, conventional and light rail lines, the track trackage. However, if the conventional this part has an exception for ‘‘street, standards apply and a waiver is very railroad is responsible for maintaining the suburban, or interurban electric railways unlikely. A light rail operation that owns grade crossing devices, the light rail operator unless operated as a part of the general track over which the conventional railroad will still have to assist the railroad in railroad system of transportation.’’ 49 CFR operates may wish to consider assigning reporting all grade crossing signal failures. 210.3(b)(2). The petition should address responsibility for that track to the other Moreover, regardless of which railroad is whether this exception may apply to the light railroad. If so, the track owner must follow responsible for maintenance of the grade rail operation. Note that this exception is the procedure set forth in 49 CFR 213.5(c). crossing signals, any railroad (including a broader than the sole exception to the Where such an assignment occurs, the owner light rail operation) operating over a crossing railroad safety statutes (i.e., urban rapid and assignee are responsible for compliance. that has experienced an activation failure, transit not connected to the general system). B. Signal systems reporting requirements partial activation, or false activation must The greater the integration of the light rail (part 233). This part contains reporting take the steps required by this rule to ensure and conventional operations, the less likely requirements with respect to methods of train safety at those locations. While the this exception would apply. operation, block signal systems, maintaining railroad will retain all of its If the light rail equipment would normally interlockings, traffic control systems, responsibilities in such situations (such as meet the standards in this rule, there would automatic train stop, train control, and cab contacting train crews and notifying law be no reason to seek a waiver of it. If it signal systems, or other similar appliances, enforcement agencies), the operating railroad appears that the light rail system would methods, and systems. If a signal system must observe requirements concerning neither meet the standards nor fit within the failure occurs on general system track which flagging, train speed, and use of the exception, the petition should address noise is used by both conventional and light rail locomotive’s audible warning device. mitigation measures used on the system, lines, and triggers the reporting requirements D. Approval of signal system modifications especially as part of a system safety program. of this part, the light rail operator must file, (part 235). This part contains instructions Note, however, that FRA lacks the authority or cooperate fully in the filing of, a signal governing applications for approval of a to waive certain Environmental Protection system report. The petition should explain discontinuance or material modification of a Agency standards (40 CFR part 201) that whether the light rail operator or signal system or relief from the regulatory underlie this rule. See 49 CFR 210.11(a). conventional railroad is responsible for requirements of part 236. In the case of a B. Railroad freight car safety standards maintaining the signal system. Assuming that signal system located on general system track (part 215). A light rail operator is likely to the light rail operator (or a contractor hired which is used by both conventional and light move freight cars only in connection with by this operator) has responsibility for rail lines, a light rail operation is subject to maintenance-of-way work. As long as such maintaining the signal system, that entity is this part only if it (or a contractor hired by cars are properly stenciled in accordance the logical choice to file each signal failure the operator) owns or has responsibility for with section 215.305, this part does not report, and a waiver is very unlikely. maintaining the signal system. If the otherwise apply, and a waiver would seem Moreover, since a signal failure first observed conventional railroad does the maintenance, unnecessary. by a light rail operator can later have then that railroad would file any application C. Rear end marking devices (part 221). catastrophic consequences for a conventional submitted under this part; the light rail This part requires that each train occupying

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The device, which condition and operation of its locomotive being forced to comply with the existing must be approved by FRA, must have equipment. statutory safety appliance requirements specific intensity, beam arc width, color, and (2) FRA is not likely to waive completely would conflict with the exemption flash rate characteristics. A light rail the provision (section 229.125) of this rule exceptions set forth at 49 U.S.C. 20306. The operation seeking a waiver of this part will concerning auxiliary lights designed to warn petition should also show that granting the need to explain how other marking devices highway motorists of an approaching train. In exemption is in the public interest and is with which it equips its vehicles, or other order to reduce the risk of grade crossing consistent with assuring the safety of the means such as train control, will provide the accidents, it is important that all locomotives light rail operator’s employees and same assurances as this part of a reduced used by both conventional railroads and light passengers. likelihood of collisions attributable to the rail systems present the same distinctive G. Safety appliance standards (part 231). failure of an approaching train to see the rear profile to motor vehicle operators (1) The regulations in this part specify the end of a leading train in time to stop short approaching grade crossings on the general requisite location, number, dimensions, and of it during periods of reduced visibility. The railroad system. If uniformity is sacrificed by manner of application of a variety of railroad petition should describe the light rail permitting light rail systems to operate car safety appliances (e.g., handbrakes, vehicle’s existing marking devices (e.g., locomotives through the same grade ladders, handholds, steps), and directly headlights, brakelights, taillights, turn signal crossings traversed by conventional trains implement a number of the statutory lights), and indicate whether the vehicle with light arrangements placed in different requirements found in 49 U.S.C. 20301– bears reflectors. If the light rail system will locations on the equipment, safety could be 20305. These very detailed regulations are operate in both a conventional railroad compromised. Accordingly, the vehicle intended to ensure that sufficient safety environment and in streets mixed with motor design should maintain the triangular pattern appliances are available and able to function vehicles, the petition should discuss whether required of other locomotives and cab cars to safely and securely as intended. adapting the design of the vehicle’s lighting the extent practicable. (2) FRA recognizes that due to the unique characteristics to conform to FRA’s (3) FRA is aware that light rail headlights characteristics of light rail equipment, some regulations would adversely affect the safety are likely to produce less than 200,000 of these provisions may be irrelevant to light of its operations in the street environment. A candela. While some light rail operators may rail operation, and that others may not fit light rail system that has a system safety choose to satisfy the requirements of section properly in the context of light rail program developed under FTA’s rules may 229.125 by including lights on their operations (e.g., crewmembers typically do choose to discuss how that program equipment of different candlepower not perform yard duties from positions addresses the need for equivalent levels of controlled by dimmer switches, the outside and adjacent to the light rail vehicle safety when its vehicles operate on headlights on the majority of light rail or near the vehicle’s doors). However, to the conventional railroad corridors. vehicles will likely not meet FRA’s minimum extent that the light rail operation D. Safety glazing standards (part 223). This requirement. However, based on the nature of encompasses the safety risks addressed by part provides that passenger car windows be the operations of light rail transit, FRA the regulatory provisions of this part, a equipped with FRA-certified glazing recognizes that waivers of the minimum waiver petition should explain precisely how materials in order to reduce the likelihood of candela requirement for transit vehicle the light rail system’s practices will provide injury to railroad employees and passengers headlights seems appropriate. for the safe operation of its passenger from the breakage and shattering of windows F. Safety appliance laws (49 U.S.C. 20301– equipment. The petition should focus on the and avoid ejection of passengers from the 20305). (1) Since certain safety appliance design specifications of the equipment, and vehicle in a collision. This part, in addition requirements (e.g., automatic couplers) are explain how the light rail system’s operating to requiring the existence of at least four statutory, they can only be ‘‘waived’’ by FRA practices, and its intended use of the emergency windows, also requires window under the exemption conditions set forth in equipment, will satisfy the safety purpose of markings and operating instructions for each 49 U.S.C. 20306. Because exemptions the regulations while providing at least an emergency window, as well as for each requested under this statutory provision do equivalent level of safety. window intended for emergency access, so as not involve a waiver of a safety rule, H. Passenger equipment safety standards to provide the necessary information for regulation, or standard (see 49 CFR 211.41), (part 238). This part prescribes minimum evacuation of a passenger car. FRA will not FRA is not required to follow the rules of Federal safety standards for railroad permit operations to occur on the general practice for waivers contained in part 211. passenger equipment. Since a collision on system in the absence of effective alternatives However, whenever appropriate, FRA will the general railroad system between light rail to the requirements of this part that provide combine its consideration of any request for equipment and conventional rail equipment an equivalent level of safety. The petition an exemption under § 20306 with its review could prove catastrophic, because of the should explain what equivalent safeguards under part 211 of a light rail operation’s significantly greater mass and structural are in place to provide the same assurance as petition for waivers of FRA’s regulations. strength of the conventional equipment, a part 223 that passengers and crewmembers (2) FRA may grant exemptions from the waiver petition should describe the light rail are safe from the effects of objects striking a statutory safety appliance requirements in 49 operation’s system safety program that is in light rail vehicle’s windows. The petition U.S.C. 20301–20305 only if application of place to minimize the risk of such a collision. should also discuss the design characteristics such requirements would ‘‘preclude the The petition should discuss the light rail of its equipment when it explains how the development or implementation of more operation’s operating rules and procedures, safety of its employees and passengers will efficient railroad transportation equipment or train control technology, and signal system. be assured during an evacuation in the other transportation innovations.’’ 49 U.S.C. If the light rail operator and conventional absence of windows meeting the specific 20306. The exemption for technological railroad will operate simultaneously on the requirements of this part. A light rail system improvements was originally enacted to same track, the petition should include a that has a system safety program plan further the implementation of a specific type quantitative risk assessment that incorporates developed under FTA’s rule may be able to of freight car, but the legislative history design information and provide an demonstrate that the plan satisfies the safety shows that Congress intended the exemption engineering analysis of the light rail goals of this part. to be used elsewhere so that ‘‘other types of equipment and its likely performance in E. Locomotive safety standards (part 229). railroad equipment might similarly benefit.’’ derailment and collision scenarios. The (1) This part contains minimum safety S. Rep. 96–614 at 8 (1980), reprinted in 1980 petitioner should also demonstrate that risk standards for all locomotives, except those U.S.C.C.A.N. 1156,1164. mitigation measures to avoid the possibility propelled by steam power. FRA recognizes (3) FRA recognizes the potential public of collisions, or to limit the speed at which that due to the unique characteristics of light benefits of allowing light rail systems to take a collision might occur , will be employed in rail equipment, some of these provisions may advantage of underutilized urban freight rail connection with the use of the equipment on be irrelevant to light rail equipment, and that corridors to provide service that, in the a specified shared-use rail line. This part also

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Operating practices. rail system that is otherwise governed by accident on the non-shared-use portion, FRA A. Railroad workplace safety (part 214). (1) those rules. However, to the extent that light may want to determine whether the cause of This part contains standards for protecting rail and conventional operations occur the accident pointed to a systemic problem bridge workers and roadway workers. The simultaneously on the same track, FRA is not with the equipment that might impact the petition should explain whether the light rail likely to apply different rules to the two transit system’s operations on the general operator or conventional railroad is operations, particularly with respect to post- system. Similarly, where human error might responsible for bridge work on shared general accident testing, for which FRA requirements be a factor, FRA may want to determine system trackage. If the light rail operator does are more extensive (e.g., section 219.11(f) whether the employee potentially at fault the work and does similar work on segments addresses the removal, under certain also has safety responsibilities on the general outside of the general system, it may wish to circumstances, of body fluid and/or tissue system and, if so, take appropriate action to seek a waiver permitting it to observe OSHA samples taken from the remains of any ensure that corrective action is taken. FRA standards throughout its system. railroad employee who performs service for believes its statutory investigatory authority (2) There are no comparable OSHA a railroad). (FRA recognizes that in the event extends as far as necessary to address any standards protecting roadway workers. The of a fatal train accident involving a transit condition that might reasonably be expected petition should explain which operator is vehicle, whether involving temporal to create a hazard to railroad operations responsible for track and signal work on the separation or simultaneous use of the same within its jurisdiction. shared segments. If the light rail operator track, the National Transportation Safety G. Hours of service laws (49 U.S.C. 21101– does this work, the petition should explain Board will likely investigate and obtain its 21108). (1) The hours of service laws apply how the light rail operator protects these own toxicology test results.) to all railroads subject to FRA’s jurisdiction, workers. However, to the extent that E. Railroad communications (part 220). A and govern the maximum work hours and protection varies significantly from FRA’s light rail operation is likely to have an minimum off-duty periods of employees rules, a waiver permitting use of the light rail effective system of radio communication that engaged in one or more of the three system’s standards could be very confusing may provide a suitable alternative to FRA’s categories of covered service described in 49 to train crews of the conventional railroad rules. However, the greater the need for radio U.S.C. 21101. If an individual performs more who follow FRA’s rules elsewhere. A waiver communication between light rail personnel than one kind of covered service during a of this rule is unlikely. A petition should (e.g., train crews or dispatchers) and tour of duty, then the most restrictive of the address how such confusion would be personnel of the conventional railroad (e.g., applicable limitations control. Under current avoided and safety of roadway workers train crews, roadway workers), the greater law, a light rail operation could request a would be ensured. will be the need for standardized waiver of the substantive provisions of the B. Railroad operating rules (part 217). This communication rules and, accordingly, the hours of service laws only under the ‘‘pilot part requires filing of a railroad’s operating rules and that employees be instructed and less likely will be a waiver. project’’ provision described in 49 U.S.C. tested on compliance with them. A light rail F. Railroad accident/incident reporting 21108, provided that the request is based operation would not likely have difficulty (part 225). (1) FRA’s accident/incident upon a joint petition submitted by the complying with this part. However, if a information is very important in the agency’s railroad and its affected labor organizations. waiver is desired, the light rail system should decisionmaking on regulatory issues and Because waivers requested under this explain how other safeguards it has in place strategic planning. A waiver petition should statutory provision do not involve a waiver provide the same assurance that operating indicate precisely what types of accidents of a safety rule, regulation, or standard (see employees are trained and periodically tested and incidents it would report, and to whom, 49 CFR 211.41), FRA is not required to follow on the rules that govern train operation. A under any alternative it proposes. FRA is not the rules of practice for waivers contained in light rail system that has a system safety likely to waive its reporting requirements part 211. However, whenever appropriate, program plan developed under FTA’s rules concerning train accidents or highway-rail FRA will combine its consideration of any may be in a good position to give such an grade crossing collisions that occur on the request for a waiver under § 21108 with its assurance. general railroad system. Reporting of review under part 211 of a light rail C. Railroad operating practices (part 218). accidents under FTA’s rules is quite different operation’s petition for waivers of FRA’s This part requires railroads to follow certain and would not provide an effective regulations. practices in various aspects of their substitute. However, with regard to employee (2) If such a statutory waiver is desired, the operations (protection of employees working injuries, the light rail operation may, absent light rail system will need to assure FRA that on equipment, protection of trains and FRA’s rules, otherwise be subject to reporting the waiver of compliance is in the public locomotives from collisions in certain requirements of FTA and OSHA and may interest and consistent with railroad safety. situations, prohibition against tampering have an interest in uniform reporting of those The waiver petition should include a with safety devices, protection of occupied injuries wherever they occur on the system. discussion of what fatigue management camp cars). Some of these provisions (e.g., Therefore, it is more likely that FRA would strategies will be in place for each category camp cars) may be irrelevant to light rail grant a waiver with regard to reporting of of covered employees in order to minimize operations. Others may not fit well in the employee injuries. the effects of fatigue on their job context of light rail operations. To the extent (2) Any waiver FRA may grant in the performance. However, FRA is unlikely to the light rail operation presents the risks accident/incident reporting area would have grant a statutory waiver covering employees addressed by the various provisions of this no effect on FRA’s authority to investigate of a light rail operation who dispatch the part, a waiver provision should explain such incidents or on the duties of light rail trains of a conventional railroad or maintain precisely how the light rail system’s practices operators and any other affected railroads to a signal system affecting shared use trackage. will address those risks. FRA is not likely to cooperate with those investigations. See H. Hours of service recordkeeping (part waive the prohibition against tampering with sections 225.31 and 225.35 and 49 U.S.C. 228). This part prescribes reporting and safety devices, which would seem to present 20107 and 20902. Light rail operators should recordkeeping requirements with respect to no particular burden to light rail operations. anticipate that FRA will investigate any the hours of service of employees who Moreover, blue signal regulations, which serious accident or injury that occurs on the perform the job functions set forth in 49 protect employees working on or near shared use portion of their lines, even if it U.S.C. 21101. As a general rule, FRA equipment, are not likely to be waived to the occurs during hours when only the light rail anticipates that any waivers granted under extent that such work is performed on track trains are operating. Moreover, there may be this part will only exempt the same groups shared by a light rail operation and a instances when FRA will work jointly with of employees for whom a light rail system conventional railroad, where safety may best FTA and the state agency to investigate the has obtained a waiver of the substantive be served by uniformity. cause of a transit accident that occurs off the provisions of the hours of service laws under

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49 U.S.C. 21108. Since it is important that and have proper skills to operate a light rail operation on the same track by clearly FRA be able to verify that a light rail vehicle in shared use on the general railroad defining specific segments of the day when operation is complying with the on- and off- system. The petition should explain what only one type of operation may occur. Mere duty restrictions of the hour of service laws safeguards are in place to ensure that light spacing of train movements by a train control for all employees not covered by a waiver of rail engineers receive at least an equivalent system does not constitute this temporal the laws’ substantive provisions, it is level of training, testing, and monitoring on separation. unlikely that any waiver granted of the the rules governing train operations to that 3. FRA is very likely to grant waivers of reporting and recordkeeping requirements received by locomotive engineers employed many of its rules where complete temporal would exclude those employees. However, in by conventional railroads and certified under separation between light rail and a system with fixed work schedules that do part 240. Any light rail system unable to meet conventional operations is demonstrated in this burden would have to fully comply with not approach 12 hours on duty in the the waiver request. The chart below lists each the requirements of part 240. Moreover, aggregate, it may be possible to utilize of FRA’s railroad safety rules and provides existing payroll records to verify compliance. where a transit system intends to operate simultaneously on the same track with FRA’s view on whether it is likely to grant I. Passenger train emergency preparedness a waiver in a particular area where temporal (part 239). This part prescribes minimum conventional equipment, FRA will not be inclined to waive the part 240 requirements. separation is assured. Where the ‘‘Likely Federal safety standards for the preparation, Treatment’’ column says ‘‘comply’’ a waiver adoption, and implementation of emergency In that situation, FRA’s paramount concern would be uniformity of training and is not likely, and where it says ‘‘waive’’ a preparedness plans by railroads connected waiver is likely. Of course, FRA will consider with the operation of passenger trains. FRA’s qualifications of all those operating trains on each petition on its own merits and one expectation is that by requiring affected the general system, regardless of the type of should not presume, based on the chart, that railroads to provide sufficient emergency equipment. FRA will grant or deny any particular request egress capability and information to V. Waivers That May be Appropriate for in a petition. This chart is offered as general passengers, along with mandating that these Time-Separated Light Rail Operations guidance as part of a statement of policy, and railroads coordinate with local emergency 1. The foregoing discussion of factors to response officials, the risk of death or injury as such does not alter any safety rules or address in a petition for approval of shared obligate FRA to follow it in every case. This from accidents and incidents will be use concerns all such petitions and, lessened. A waiver petition should state chart assumes that the operations of the local accordingly, is quite general. FRA is willing rail transit agency on the general railroad whether the light rail system has an to provide more specific guidance on where emergency preparedness plan in place under system are completely separated in time from waivers may be likely with regard to light rail conventional railroad operations, and that a state system safety program developed operations that are time-separated from under FTA’s rules for the light rail operator’s the light rail operation poses no atypical conventional operations. FRA’s greatest safety hazards. FRA’s procedural rules on separate street railway segments. Under a concern with regard to shared use of the system safety program, a light rail operation matters such as enforcement (49 CFR parts general system is a collision between light 209 and 216), and its statutory authority to is likely to have an effective plan for dealing rail and conventional trains on the same with emergency situations that may provide investigate accidents and injuries and take track. Because the results could well be emergency action to address an imminent an equivalent alternative to FRA’s rules. To catastrophic, FRA places great emphasis on the extent that the light rail operation’s plan hazard of death or injury, would apply to avoiding such collisions. The surest way to these operations in all cases. relates to the various provisions of this part, guarantee that such collisions will not occur 4. Where waivers are granted, a light rail a waiver petition should explain precisely is to strictly segregate light rail and operator would be expected to operate under how each of the requirements of this part is conventional operations by time of day so a system safety plan developed in accordance being addressed. The petition should that the two types of equipment never share with the FTA state safety oversight program. especially focus on the issues of the same track at the same time. This is not communication, employee training, to say that FRA will not entertain waiver The state safety oversight agency would be passenger information, liaison relationships petitions that rely on other methods of responsible for the safety oversight of the with emergency responders, and marking of collision avoidance such as sophisticated light rail operation, even on the general emergency exits. train control systems. However, petitioners system, with regard to aspects of that J. Qualification and certification of who do not intend to separate light rail from operation for which a waiver is granted. (The locomotive engineers (part 240). This part conventional operations by time of day will ‘‘Comments’’ column of the chart shows contains minimum Federal safety face a steep burden of demonstrating an ‘‘State Safety Oversight’’ where waivers requirements for the eligibility, training, acceptable level of safety. FRA does not insist conditioned on such state oversight are testing, certification, and monitoring of that all risk of collision be eliminated. likely.) FRA will coordinate with FTA and locomotive engineers. Those who operate However, given the enormous severity of the the state agency to address any serious safety light rail trains may have significant effects likely consequences of a collision, the problems. If the conditions under which the on the safety of light rail passengers, demonstrated risk of such an event must be waiver was granted change substantially, or motorists at grade crossings, and, to the extremely remote. unanticipated safety issues arise, FRA may extent trackage is shared with conventional 2. There are various ways of providing modify or withdraw a waiver in order to railroads, the employees and passengers of such strict separation by time. For example, ensure safety. On certain subjects where those railroads. The petition should describe freight operations could be limited to the waivers are not likely, the ‘‘Comments’’ whether a light rail system has a system hours of midnight to 5 a.m. when light rail column of the chart makes special note of safety plan developed under FTA’s rules that operations are prohibited. Or, there might be some important regulatory requirements that is likely to have an effective means of both a nighttime and a mid-day window for the light rail system will have to observe assuring that the operators, or ‘‘engineers,’’ of freight operation. The important thing is that even if it is not primarily responsible for its equipment receive the necessary training the arrangement not permit simultaneous compliance with that particular rule.

VerDate 112000 15:24 Jul 07, 2000 Jkt 190000 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\10JYR6.SGM pfrm08 PsN: 10JYR6 42552 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations PERATIONS O by the railroad and affected ONVENTIONAL C ROM F IME T have to observe speed limits for class of track. have to abide by operational limitations and report signal failures. have to comply with sections concerning crossing accidents, activation failures, and false activations. quirements. OSHA rules. quirements. If the conventional RR owns track, light rail will If conventional RR maintains signals, light rail will If conventional RR maintains devices, light rail will State safety oversight. State safety oversight. State safety oversight. Employee injuries would be reported under FTA or See note below on possible waiver of statutory re- road transportation equipment or other innova- t could not meet the standards. EPARATION IN ed to two years but may be extended for additional two-year periods S auxiliary lights, ts and crossing atute); waiver not ...... or its contractor cations with freight perator owns track or ASED ON perator or its contractor B ...... State safety oversight. ion on tampering with safety se applies ...... FTA rule may apply...... State safety oversight; see note below on statutory re- ...... State safety oversight...... State safety oversight...... State safety oversight...... State safety oversight. YSTEM ...... State safety oversight...... State safety oversight...... OSHA standards. S AILROAD R has been assigned responsibility for it). has responsibility for crossing devices). which is important for grade crossing safety. trains and roadway workers are necessary. has responsibility for signal maintenance). devices related to signal system, and blue rules on shared track. accidents; waive as to injuries; FRA accident inves- tigation authority not subject to waiver. likely for personnel who dispatch conventional RR or maintain signal system on shared use track. Waive ...... State safety oversight. ENERAL , automatic couplers) are statutory and can only be waived under the conditions set forth in 49 U.S.C. 20306, which G

e.g. PERATIONS ON THE O paredness. AIL R IGHT L Currently, 49 U.S.C. 21108 permits FRA to waive substantive provisions of the hours service laws based upon a joint petition Certain safety appliance requirements ( AIVERS FOR W Title 49 CFR part Subject of rule Likely treatment Comments

OSSIBLE Hours of Service Statute. Safety Appliance Statute. P ** * Track, Structures, and Signals 213 ...... standardssafety Track ...... 233, 235, 236 Comply (assuming light rail o ...... Signal and train control ...... Comply (assuming light rail 234operat ...... signalscrossing Grade ...... Comply (assuming light rail o 213, Appendix C ...... Bridge safety policy ...... Motive Power and Equipment Not a rule. Compliance voluntary. .. 210 ...... 215 Noise emission ...... 221 Freight car safety standards ...... Waive ...... 223 Rear end marking devices ...... Waive ...... 229 Safety glazing standards Waive ...... standards...... safety Locomotive Waive Waive, except for arrangement of ...... 231* ...... Safety appliance standards ...... 238 ...... Waive ...... Passenger equipment standards .....Operating Practices Waive ...... 214 ...... 214 Bridge worker ...... 217 Roadway worker safety Waive ...... 218 Operating rules ...... Comply ...... practices Operating ...... Waive ...... Waive, except for prohibit 219 ...... 220 Alcohol and drug ...... communications Radio Waive if FTA rule otherwi ...... 225 ...... Waive, except to extent communi investigationand reporting Accident Comply with regard to train acciden 228** ...... recordkeepingservice of ...... Hours Waive (in concert with waiver of st 239 ...... Passenger train emergency pre- 240 ...... Engineer certification ...... Waive ...... tions.'' If consistent with employee safety, FRA could probably rely on this provision to address most light rail equipment tha permits exemptions if application of the requirements would ``preclude development or implementation more efficient rail labor organizations, after notice and an opportunity for a hearing. This is ``pilot project'' provision, so waivers are limit after notice and an opportunity for comment.

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Issued in Washington, DC on June 30, 2000. Jolene M. Molitoris, Federal Railroad Administrator. [FR Doc. 00–17208 Filed 7–5–00; 10:43 am] BILLING CODE 4910±06±P

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