Kevin M. Sheys, Partner kevin.sheys@klgates K&L Gates, Washington, DC klgates

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

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

3. FRA Jurisdiction • FRA has jurisdiction over commuter railroads, regardless of connection to the general railroad system • FRA has jurisdiction over rail transit operations if connected to the general railroad system

4. No FRA Jurisdiction • FRA does not have jurisdiction over rail transit operations not connected to the general railroad system

5. Determining FRA Jurisdiction Logical Order/Approach Q : Is it commuter rail? Y: FRA N: Is it connected to the GRS? Y: FRA N: Not FRA

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

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

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

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

10. FRA Shared Use Policy Defines Commuter Rail (cont’d) • Most critical Factor? • Absence or presence of riders with trip purpose other than commuter or school

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

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

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

14. Determining FRA Jurisdiction Step 2: Is it connected to the GRS? What is a “connection”? • FRA shared use policy says must look at nature of connection

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

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

17. Determining FRA Jurisdiction (cont’d) • Closer Cases • Shared grade crossings • Shared right-of-way (separate track) • Commonly dispatched facilities

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

19. Commuter Rail or Connected Rail- Why do I care about the difference? • Available waivers – very limited on commuter rail • If Connected Rail – FRA will regulate only to the extent of the connection

20. Capital Metropolitan Transportation Authority (CMTA) • Sought waiver in May, 2006 • Based in part on temporal separation

21. Compare Earlier Series of Waivers to CMTA Waiver • Overall, FRA granted most of the waiver requests in prior series of waivers • CMTA, FRA denied a signification number of waiver requests

22. Compare Utah Transit Authority TRAX Waiver to CMTA Waiver • Worker/Operations Waivers

23. Compare UTA TRAX Waiver to CMTA Waiver (cont’d) • Rolling Stock/Vehicle Waivers

24. Compare UTA TRAX Waiver to CMTA Waiver (cont’d) •Rolling Stock/Vehicle Waivers (cont’d)

25. Compare UTA TRAX Waiver to CMTA Waiver (cont’d) •Rolling Stock/Vehicle Waivers (cont’d)

26. Explanation • FRA regulates commuter rails in shared track environments differently than it regulates transit in shared track environments • Especially on worker/operations issues • FRA has jurisdiction over both, but exercises it differently

27. Approach/Analysis • Know whether your project is commuter rail or rail transit • If it is commuter rail, be aware of the compliance issues and the very limited availability of waivers

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

29. Approach/Analysis (cont’d) • If it is rail transit, make sure your entire management team knows the implications of establishing a connection

30. Approach/Analysis (cont’d) • Unless absolutely clear, analyze your facts under the FRA Shared Use Policy and Case Law

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

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