Kevin M. Sheys, Partner

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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_at_klgates.com
• KL Gates, Washington, DC
• www.klgates.com

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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)

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FRA Jurisdiction
FRA has jurisdiction over commuter railroads,
regardless of connection to the general railroad
system FRA has jurisdiction over rail transit
operations if connected to the general railroad
system
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No FRA Jurisdiction
FRA does not have jurisdiction over rail
transit operations not connected to the general
railroad system
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Determining FRA Jurisdiction

• Logical Order/Approach
• Q Is it commuter rail?
• Y FRA
• N Is it connected to the GRS?
• Y FRA
• N Not FRA

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Determining FRA Jurisdiction (contd)
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
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FRA Shared Use Policy Defines Commuter Rail
Serves urban area, suburbs and more distant
outlying communities in the greater metropolitan
area Q Average trip length? Q Average
distance between stations?
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FRA Shared Use Policy Defines Commuter Rail
(contd)
Primary function is moving passengers back and
forth between work and homes within the greater
metropolitan area Q What percentage of trips
are work and school trips?
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FRA Shared Use Policy Defines Commuter Rail
(contd)
Vast bulk of trains operated in morning/evening
peak periods A few trains at other hours Q
Percentage of trains in Rush Hour Periods?
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FRA Shared Use Policy Defines Commuter Rail
(contd)

• Most critical Factor?
• Absence or presence of riders with trip purpose
  other than commuter or school

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FRA Shared Use Policy Defines Urban Rapid Transit
Serves an urban area (and may also serve its
suburbs) Q What is the average trip length?
Q What is the average distance between stations?
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FRA Shared Use Policy Defines Urban Rapid Transit
(contd)
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
(contd)
Frequent train service even outside
morning/evening peak periods Q What
percentage of train starts are in Rush Hour
Periods? Q How much weekend service?
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Determining FRA Jurisdiction

• Step 2 Is it connected to the GRS?
• What is a connection?
• FRA shared use policy says must look at nature of
  connection

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Determining FRA Jurisdiction (contd)

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

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Determining FRA Jurisdiction (contd)

• 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

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Determining FRA Jurisdiction (contd)

• Closer Cases
• Shared grade crossings
• Shared right-of-way (separate track)
• Commonly dispatched facilities

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Determining FRA Jurisdiction (contd)
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Commuter Rail or Connected Rail- Why do I care
about the difference?

• Available waivers very limited on commuter rail
• If Connected Rail FRA will regulate only to the
  extent of the connection

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Capital Metropolitan Transportation Authority
(CMTA)
Sought waiver in May, 2006 Based in part on
temporal separation
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Compare Earlier Series of Waivers to CMTA Waiver
Overall, FRA granted most of the waiver
requests in prior series of waivers CMTA, FRA
denied a signification number of waiver requests
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Compare Utah Transit Authority TRAX Waiver to
CMTA Waiver
Worker/Operations Waivers
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Compare UTA TRAX Waiver to CMTA Waiver (contd)
Rolling Stock/Vehicle Waivers
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Compare UTA TRAX Waiver to CMTA Waiver (contd)
Rolling Stock/Vehicle Waivers (contd)
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Compare UTA TRAX Waiver to CMTA Waiver (contd)
Rolling Stock/Vehicle Waivers (contd)
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Explanation
FRA regulates commuter rails in shared track
environments differently than it regulates
transit in shared track environments
Especially on worker/operations issues FRA has
jurisdiction over both, but exercises it
differently
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Approach/Analysis
Know whether your project is commuter rail or
rail transit If it is commuter rail, be aware
of the compliance issues and the very limited
availability of waivers
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Approach/Analysis (contd)
If it is rail transit, know whether it is
connected to the general railroad system If
it is connected, be aware of the scope of waivers
available depending on the nature of the
connection and the operating environment
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Approach/Analysis (contd)
If it is rail transit, make sure your entire
management team knows the implications of
establishing a connection
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Approach/Analysis (contd)
Unless absolutely clear, analyze your facts
under the FRA Shared Use Policy and Case Law
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References
49 U.S.C. 20102 49 CFR Part 209, Appendix
A and Part 211, Appendix A FRA Shared Use
Policy, 65 Fed. Reg. 42529 Utah Transit
Authority TRAX Waiver filing and decision
http//www.regulations.gov/fdmspublic/component/ma
in?mainDocketDetailEdFRA-1999-6253 Capital
Metropolitan Transportation Authority waiver
filing and decision - http//www.regulations.gov/f
dmspublic/component/main?mainDocketDetailEdFRA-2
006-25040
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References (contd)
Chicago Transit Authority v. Flohr, 570 F.2d
1305 (7th Cir. 1977). Triangle Transit
Authority, http//www.fra.dot.gov/downloads/counse
l/tritrans.pdf http//www.klgates.com/files/Publi
cation/496a09c6-4551-433f-9406-eec8587f478b/Presen
tation/PublicationAttachment/6a4a9bf0-e56d-405f-97
4c-8429fb0ac994/KL20Transportation20Alert20-20
FRA20Asserts20Jurisdiction20-20February202003
.pdf