[Federal Register Volume 64, Number 210 (Monday, November 1, 1999)]
[Proposed Rules]
[Pages 59046-59058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28489]



[[Page 59045]]

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Part VIII





Department of Transportation





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Federal Railroad Administration



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49 CFR Chapter II and Part 209



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

  Federal Register / Vol. 64, No. 210 / Monday, November 1, 1999 / 
Proposed Rules  

[[Page 59046]]



DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Chapter II and Part 209

[FRA Docket No. FRA-1999-5685, Notice No. 4]
RIN 2130-AB33


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

AGENCY: Federal Railroad Administration (FRA), Transportation (DOT).

ACTION: Proposed rule and policy statement.

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

SUMMARY: The Federal Railroad Administration (FRA) and the Federal 
Transit Administration are jointly developing a policy concerning 
safety issues related to light rail transit operations taking place on 
the general railroad system. That policy will describe how the two 
agencies will coordinate use of their respective safety authorities 
over shared use operations. FRA is issuing this proposed policy 
statement to describe the extent of its statutory jurisdiction over 
railroad passenger operations (which covers all railroads except urban 
rapid transit operations not connected to the general railroad system) 
and explain how it will exercise that jurisdiction. The proposal also 
explains FRA's waiver process and discusses factors that should be 
addressed in any petition submitted by light rail operators and other 
railroads seeking approval of shared use of the general railroad 
system.
    FRA is not required by law to provide notice and opportunity for 
comment on a statement of policy. However, given the number of shared 
use operations being planned around the nation and the level of 
interest in how the safety of those operations will be assured, the 
agency concluded that it could benefit from receiving comments before 
drafting its policy in final. FRA does not plan to hold a hearing, but 
will discuss the proposed statement with interested groups.

DATES: Submit written comments on this document on or before January 
14, 2000.

ADDRESSES: Procedures for written comments: Submit one copy to the 
Department of Transportation Central Docket Management Facility located 
in room PL-401 at the Plaza level of the Nassif Building, 400 Seventh 
Street, S.W., Washington, D.C. 20590. All docket material on the 
proposed statement will be available for inspection at this address and 
on the Internet at http://doms.dot.gov. (Docket hours at the Nassif 
Building are Monday-Friday, 10 a.m. to 5 p.m., excluding Federal 
holidays.) Persons desiring notification that their comments have been 
received should submit a stamped, self-addressed postcard with their 
comments. The postcard will be returned to the addressee with a 
notation of the date on which the comments were received.

FOR FURTHER INFORMATION CONTACT: Daniel C. Smith, Assistant Chief 
Counsel for Safety, FRA, RCC-10, 1120 Vermont Avenue, N.W., Mail Stop 
10, Washington, D.C. 20590 (telephone: 202-493-6029) or David H. 
Kasminoff, Trial Attorney, FRA, RCC'12, 1120 Vermont Avenue, N.W., Mail 
Stop 10, Washington, D.C. 20590 (telephone: 202-493-6043).

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

Introduction

    In many areas of the United States, local communities are planning 
or developing passenger operations that will operate over the lines of 
new or existing railroads. Many of the new operations will use rail 
equipment commonly referred to as ``light rail'' due to its generally 
lighter construction than equipment ordinarily used by freight and most 
passenger railroads. Some of these light rail operations will operate 
over lines also used by conventional freight and passenger railroads.
    The Department of Transportation (DOT) fully supports the 
development of railroad passenger operations as an important means of 
expanding transportation services in this country as we enter the new 
millennium, without adding additional congestion to the nation's 
crowded highways and airports. DOT's Federal Transit Administration 
(FTA) will play a critical role in financing many of these new and 
expanded rail systems.
    DOT's most important mission is ensuring safe transportation. DOT's 
Federal Railroad Administration (FRA) has primary responsibility for 
the safety of railroad passenger operations. Consistent with FRA's 
safety role, in a final rule published in the Federal Register on 
December 27, 1995, FTA announced that it would begin requiring states 
to oversee the safety of rail fixed guideways systems not regulated by 
FRA. 60 FR 67034; see 49 U.S.C. 5530, 49 CFR part 659. Under its 
statutory scheme, FTA does not directly enforce safety statutes or 
regulations against rail fixed guideway systems, nor does FTA have 
safety inspectors who enter upon the regulated properties to perform 
inspections.
    On May 25, 1999, FRA and FTA published a ``Proposed Joint Statement 
of Agency Policy Concerning Shared Use of the General Railroad System 
by Conventional Railroads and Light Rail Transit Systems'' (Proposed 
Joint Policy Statement), in which the two agencies explained how they 
intend to coordinate use of their respective safety authorities with 
regard to shared use operations. 64 FR 28238. The document also 
summarized how the process of obtaining waivers of FRA's safety 
regulations may work, especially where the light rail and conventional 
rail operations occur at different times of day. As discussed in the 
Proposed Joint Policy Statement, FRA is now issuing this proposed 
statement of agency policy concerning its safety jurisdiction over 
railroad passenger operations in order to provide ``a thorough 
discussion of the extent and exercise of [its] jurisdiction and 
guidance on which of FRA's safety rules are likely to apply in 
particular operational situations.'' 64 FR at 28239. Because the 
proposed joint FRA/FTA statement provided some guidance on FRA's waiver 
process and this proposed statement amplifies that guidance, the two 
statements overlap somewhat and to some degree are repetitious. 
However, when final statements are issued, the guidance on the FRA 
waiver process will be found in FRA's statement, and the joint 
statement will focus only on the two agencies' plans for coordination 
of their respective authorities. The joint policy statement and FRA's 
separate statement are being handled under the same docket number, and 
the same comment deadline (January 14, 2000) applies to both, so there 
is no need for commenters to file duplicative comments. Comments can 
focus on both proposed statements. (The comment period on the joint 
policy statement was extended further to January 14, 2000 in Notice No. 
3 so that the comment periods for both notices would coincide.)

Purpose of FRA's Separate Statement

    The current proliferation of railroad passenger operations, 
especially those involving shared use of trackage by a conventional 
railroad and a light rail operator, creates a need for FRA to clarify 
the extent to which it will exercise its jurisdiction over those 
operations. As explained below, FRA's safety jurisdiction is very broad 
and extends to all entities that can be construed as railroads by 
virtue of their providing non-highway ground transportation over rails 
or

[[Page 59047]]

electromagnetic guideways (and will extend to future railroads using 
other technologies not yet in use), but excludes urban rapid transit 
operations not connected to the general railroad system. While FRA 
believes its safety jurisdiction extends to nearly the entire universe 
of railroads, for reasons of policy it sometimes chooses not to 
exercise its authority over certain types of operations. For example, 
because of the limitations on its inspection resources and its 
assessment of the practical limitations of its role, FRA does not 
currently exercise its jurisdiction over railroads whose operations are 
confined to the boundaries of an industrial plant or over insular 
tourist operations.
    FRA's issuance of final rules on passenger train emergency 
preparedness (63 FR 24630, May 4, 1998) and passenger equipment safety 
standards (64 FR 25540, May 12, 1999) makes it all the more timely for 
FRA to provide clarification on how it exercises its jurisdiction. This 
clarification will help the developers and operators of passenger 
systems plan their activities accordingly. As set forth in the text of 
the applicability sections to FRA's regulations (e.g., 49 CFR 239.3), 
all of FRA's regulations already apply under their own terms to 
passenger operations on the general railroad system of transportation; 
this proposed policy statement does not alter any of those 
requirements, but rather explains the ramifications of FRA's 
regulations for the various kinds of railroad passenger operations. 
Also, this proposed statement offers further explanation of FRA's 
waiver process and how FRA is likely to respond to waiver petitions 
under certain circumstances.
    While passenger railroads offer the traveling public one of the 
safest forms of transportation available, passenger trains are exposed 
to a variety of safety hazards. Some of these hazards are endemic to 
the nation's rail passenger operating environment, involving the 
operation of passenger trains commingled with freight trains, often 
over track with frequent grade crossings used by heavy highway 
equipment. Collisions with a wide range of objects may occur at various 
speeds under a number of different circumstances. In addition to 
freight trains and highway vehicles, these objects include maintenance-
of-way equipment and other passenger trains. Although most of these 
collisions occur at the front or rear of the train, impact into the 
side of the train can occur, especially at the junction of rail lines 
and at highway-rail grade crossings. The possibility of a passenger 
train collision with another train or a highway vehicle greatly 
concerns FRA because of the potential for significant harm, as 
demonstrated by actual accidents.
    For example, on February 9, 1996, a near head-on collision occurred 
between two New Jersey Transit Rail Operations, Inc. trains on the 
borderline of Secaucus and Jersey City, New Jersey. Two crewmembers and 
one passenger were fatally injured, and 35 other individuals sustained 
injuries. The passenger fatality and most of the nonfatal injuries to 
passengers occurred on a train that was operating with the cab car (a 
car which provides passenger seating, as well as a location from which 
the train is operated) at the front of the train, followed by four 
passenger coaches and a locomotive pushing the train consist. (FRA 
Accident Investigation Report B-2-96.)
    One week later, on February 16, 1996, a near-head-on collision 
occurred between a Maryland Rail Commuter Service (MARC) train and an 
Amtrak train on track owned by CSX Transportation, Inc. (CSXT) at 
Silver Spring, Maryland. The MARC train was operating with a cab car as 
the lead car in the train, followed by two passenger coaches and a 
locomotive pushing the consist. The collision separated the left front 
corner of the cab car from the roof to its sill plate, and tore off 
much of the forward left side of the car body. Three crewmembers and 
eight passengers were fatally injured, and 13 occupants of the MARC 
train sustained injuries. (FRA Accident Investigation Report B-3-96.)
    On March 15, 1999, a southbound Amtrak train traveling 79 miles per 
hour and operating from Chicago, Illinois, to New Orleans, Louisiana, 
struck a flatbed semi-tractor trailer in Bourbonnais, Illinois, while 
the truck was occupying a highway-rail grade crossing. Due to the 
impact, two locomotives and 11 of the 14 cars in the train derailed. 
The train had continued upright until reaching a switch leading into a 
siding, where it struck two freight cars parked on the adjacent siding 
west of the main track. The nearest car was a gondola car loaded with 
steel bars and angle iron, and the second car was a covered hopper 
loaded with smoke stack emission fly ash. These cars were also 
derailed, destroying the gondola. The first six passenger cars of the 
Amtrak train piled up along with the tenth car, a coach. Of those cars, 
only the second car (a transition sleeper) was not destroyed. Fire from 
ruptured locomotive fuel tanks broke out, gutting the interior of the 
third car, a sleeping car. All but the last three cars derailed. The 
derailment and fire resulted in the deaths of 11 passengers, all of 
whom were located in the sleeping car, and injuries to 122 other 
passengers. (FRA Accident Investigation Report B-02-99.)
    While none of these accidents involved light rail equipment, the 
accidents all illustrate the risks to passengers and crew presented by 
operations on the general railroad system. Those risks are at least as 
great where light rail equipment is used, especially if any potential 
exists for a collision with substantially heavier and structurally 
stronger conventional trains.

FRA's Legal Authority Over Railroad Safety

The Statutory Definition of ``Railroad''

    By delegation from the Secretary of Transportation, FRA administers 
the Federal railroad safety statutes that are codified at 49 U.S.C. 
20101 through 21311 (chapters 201 through 213 of Title 49 of the United 
States Code) and also exercises enforcement authority in the rail mode 
under the hazardous materials transportation laws (49 U.S.C. Chapter 
51). Under the railroad safety statutes, ``railroad'' is defined as 
follows:

In this part--

    (1) ``railroad''--
    (A) means any form of nonhighway ground transportation that runs 
on rails or electromagnetic guideways, including--
    (i) commuter or other short-haul railroad passenger service in a 
metropolitan or suburban area and commuter railroad service that was 
operated by the Consolidated Rail Corporation on January 1, 1979; 
and
    (ii) high speed ground transportation systems that connect 
metropolitan areas, without regard to whether those systems use new 
technologies not associated with traditional railroads; but
    (B) does not include rapid transit operations in an urban area 
that are not connected to the general railroad system of 
transportation.
    (2) ``railroad carrier'' means a person providing railroad 
transportation.
49 U.S.C. 20102.

    This definition, added by the Rail Safety Improvement Act of 1988 
(``1988 Safety Act'') Pub. L. No. 100-342, makes certain elements of 
FRA's safety jurisdiction quite clear:
     FRA, with one exception, has jurisdiction over any type of 
railroad regardless of the kind of equipment it uses, its connection to 
the general railroad system of transportation, or its status as a 
common carrier engaged in interstate commerce.
     Commuter and other short-haul railroad passenger 
operations in a metropolitan or suburban area (except for one type of 
short-haul operation, i.e., urban rapid transit) are railroads within 
FRA's jurisdiction whether or not they

[[Page 59048]]

are connected to the general railroad system.
     Rapid transit operations in an urban area that are not 
connected to the general railroad system are not within FRA's 
jurisdiction. This is the sole exception to FRA's jurisdiction over 
railroads. There is no exception for ``light rail,'' a term not found 
in the statute.
     Rapid transit operations in an urban area that are 
connected to the general railroad system of transportation are within 
FRA's jurisdiction.
    The statutory definition, however, also leaves some important 
questions unanswered. The statute does not provide a definition of 
either ``commuter or other short-haul railroad passenger service'' or 
``rapid transit operations in an urban area.'' The statute does not 
state clearly whether urban rapid transit is a sub-category of ``other 
short-haul'' service or is a completely separate category. The statute 
distinguishes commuter from rapid transit service, but does not provide 
the characteristics of each or indicate whether the two types of 
service share some characteristics. The statute does not define 
``connected to'' but makes connection the critical issue in determining 
whether rapid transit operations are within FRA's jurisdiction. Nor 
does the statute define ``the general railroad system of 
transportation,'' another critical element in determining whether urban 
rapid transit operations are covered.
    These unanswered questions are not academic. For example, if 
``commuter'' and ``rapid transit'' were defined in the statute, 
distinguishing between the two types of service would be easier, and 
FRA would merely have to determine if there is a connection to the 
general railroad system in order to know if it had jurisdiction. 
However, it is possible for a railroad system in a metropolitan area to 
have characteristics of both commuter rail and rapid transit. In those 
cases, assuming there is no clear connection to the general system, 
what criteria should FRA use to determine whether it has jurisdiction 
and, if it does, whether to assert it? A brief review of the 
legislative history of the definition of the term ``railroad'' helps to 
provide some answers.

Legislative History of Definition of ``Railroad'

    Prior to 1970, FRA administered a variety of railroad safety 
statutes that applied only to common carriers engaged in interstate or 
foreign commerce by rail. For example, FRA administered the Safety 
Appliance Acts, formerly 45 U.S.C. 1-16 (1982), now 49 U.S.C. 20301-
20306. However, in 1970, Congress determined that there was a need for 
more comprehensive and uniform safety regulations in all areas of 
railroad operations and concluded that FRA needed to reach beyond 
common carriers to other types of railroads. Congress enacted the 
Federal Railroad Safety Act of 1970 (``FRSA''), Pub. L. No. 91-458, 
which (at Sec. 202(a)) gave FRA authority to regulate ``all areas of 
railroad safety,'' and conferred all powers necessary to detect and 
penalize violations of any rail safety law. Although that statute did 
not define the word ``railroad,'' its legislative history made clear 
the breadth that Congress intended the word to convey. For example, the 
House Committee on Interstate and Foreign Commerce stated:

    The Secretary's authority to regulate extends to all areas of 
railroad safety. This legislation is intended to encompass all those 
means of rail transportation as are commonly included within the 
term. Thus ``railroad'' is not limited to the confines of ``common 
carrier by railroad'' as that language is used in the Interstate 
Commerce Act.

H.R. Rep. No. 91-1194, 91st Cong., 2d Sess. at 16 (1970). Congress 
clearly expected that this expanded jurisdiction would reach commuter 
and other short-haul passenger operations. The House Committee report 
stated: ``the Secretary's jurisdiction would extend to rail operations 
in areas presently governed by compacts and other municipal authorities 
such as the Metropolitan Transit Authority in New York.'' Id.

    FRA attempted to administer this broad mandate literally until the 
Chicago Transit Authority (CTA) successfully challenged FRA's assertion 
of jurisdiction over its rapid transit operations in 1977. In Chicago 
Transit Authority v. Flohr (``CTA''), 570 F.2d 1305 (7th Cir. 1977), 
the Seventh Circuit held that Congress did not intend the word 
``railroad'' to apply to ``urban rapid transit'' such as CTA's. The 
court noted, in pertinent part, that:

    The CTA's rapid transit equipment consists of electrically self-
powered units, substantially smaller and lighter than railroad cars; 
CTA rapid transit cars do not use the rails of any [conventional] 
railroad nor conversely, can [conventional] railroads use the CTA 
rails.

Id. at 1307.

    The CTA decision did not address FRA's jurisdiction over commuter 
operations, and left FRA with little guidance about precisely what 
systems were outside of its jurisdiction. In 1982, FRA expressed to 
Congress a degree of doubt about the extent of its safety jurisdiction, 
particularly over a commuter line (Fox Chase-Newtown) operated by the 
Southeastern Pennsylvania Transportation Authority (SEPTA). Congress 
responded by including in the Rail Safety and Service Improvement Act 
of 1982 (``1982 Safety Act''), Pub. L. No. 97-468, a provision that 
made very clear its intention that FRA assert jurisdiction over 
commuter operations. Section 702(c) of that act stated that ``all areas 
of railroad safety'' in the FRSA includes ``the safety of commuter or 
other short-haul rail passenger service in a metropolitan or suburban 
area, including any commuter rail service which was operated by the 
Consolidated Rail Corporation as of January 1, 1979.'' The House 
Committee explained its intention as follows:

    This amendment is merely designed to clarify that commuter rail 
operations, such as the Fox Chase-Newtown line, are indeed subject 
to the FRSA. This clarification of FRA's jurisdiction specifically 
includes service operated by a common carrier by railroad or a 
successor operator (such as a commuter agency), but excludes rail 
service operated by street railways or rapid transit systems unless 
they are operated as a part of, or over the lines of, the general 
system of rail transportation.

H.R. Rep. No. 97-571, 97th Cong., 2d Sess. at 41-42 (1982). The report 
went on to note that ``this amendment does not extend FRSA jurisdiction 
to rail rapid transit operations such as subways or trolley lines.'' 
Id.

    After enactment of the 1982 Safety Act, therefore, it was clear 
that Congress expected FRA to assert jurisdiction over commuter 
operations but not over rapid transit operations unless they were 
connected to the general railroad system, i.e., operated as a part of, 
or over the lines of, that system. Rather than overturn CTA and direct 
FRA to assert authority over stand-alone rapid transit lines, Congress 
incorporated the basic holding of that court decision by excluding 
rapid transit operations that, like CTA's, did not share any trackage 
with the general railroad system. Although the commuter/rapid transit 
line was not clearly drawn, FRA knew from the legislative history that 
street railways, subways, and trolley lines were the kinds of 
operations Congress considered to be rail rapid transit. However, 
Congress did not incorporate the CTA court's distinctions about the 
jurisdictional relevance of types of equipment; rather, Congress 
clearly conferred jurisdiction even over trolleys and street railways 
if they were connected to the general system by virtue of operating as 
a part of, or over the lines of, that system.
    In 1986, FRA became concerned that there could be confusion about 
whether

[[Page 59049]]

its jurisdiction would extend to certain high speed transportation 
systems that were being contemplated. Some would-be stand-alone systems 
having only incidental connections with other railroads for the 
delivery of cars and equipment, and others would use technologies 
(e.g., magnetic levitation) not among those traditionally used by a 
railroad. Jurisdictional confusion could impede the development of such 
systems. FRA drafted proposed legislation to eliminate any potential 
confusion.
    In February 1987, the Secretary of Transportation submitted to 
Congress the proposed rail safety reauthorization legislation that FRA 
had recommended and drafted. That bill included a provision that would 
define ``railroad'' in the FRSA to include all forms of nonhighway 
ground transportation except urban rapid transit operations not 
connected to the general railroad system. Commuter and other short-haul 
passenger operations in a metropolitan or suburban area would continue 
to be included. High speed systems would be included even if they used 
technologies (such as magnetic levitation) not traditionally associated 
with railroads. This provision, which provided the first definition in 
the railroad safety statutes of the term ``railroad,'' incorporated the 
1982 Safety Act text on commuter and other short-haul systems and the 
1982 legislative history on urban rapid transit. With regard to rapid 
transit, the bill used the phrase ``connected to'' the general system 
as an abbreviated substitute for the 1982 legislative history's 
direction to exclude rapid transit systems unless ``operated as a part 
of, or over the lines of, the general system of rail transportation.'' 
H.R. Rep. No. 97-571, 97th Cong., 2d Sess. at 41-42 (1982). The 
provision made clear that a connection to the general system was 
relevant only in determining whether an urban rapid transit operation 
was within FRA's jurisdiction. The bill also made clear that, in the 
safety statutes, ``railroad'' was not confined to any traditional 
definition of the term that limited it to certain types of technology 
and equipment.
    With only immaterial changes, Congress enacted the provision 
drafted and recommended by FRA in the1988 Safety Act. This is the 
current definition of ``railroad'' codified at 49 U.S.C. 20102, set 
forth above. The Conference Report accompanying the 1988 Safety Act 
stated that the definition of ``railroad'' was intended to clarify the 
Secretary's jurisdiction in the rail safety area. See H.R. Rep. No. 
100-637, 100th Cong., 2d Sess. at 24 (1988). The Senate Report noted 
that, in addition to ensuring FRA's jurisdiction over high speed rail 
systems and emerging technologies, the provision incorporates the 1982 
language concerning commuter and other short-haul passenger service. 
Sen. Rep. No. 100-153, 100th Cong., 2d Sess. at 13 (1988). Shortly 
after passage of the 1988 Safety Act, FRA issued a statement of agency 
policy and interpretation, found at 49 C.F.R. Part 209, Appendix A. 
That statement of policy included a brief explanation of the extent and 
exercise of FRA's safety jurisdiction in light of the statutory 
amendments, noting that the only exception to that jurisdiction was for 
``self-contained urban rapid-transit systems.'' Id.

FRA's Policy on the Exercise of Its Safety Jurisdiction

    FRA distinguishes between the extent of its statutory jurisdiction 
(i.e., the furthest reach of its authority under the safety laws, which 
cover all railroads except urban rapid transit operations not connected 
to the general system) and its exercise of that jurisdiction (the 
degree to which it asserts its jurisdiction). See 49 CFR part 209, 
Appendix A. FRA believes that, based on its resource limitations and 
the relative degree of safety risk posed by certain operations, it 
makes sense in some situations to limit the exercise of its 
jurisdiction to something less than the entire universe of railroads 
that could be regulated. Thus, many of its regulations exclude 
operations not connected to the general railroad system, and its 
policies exclude certain other operations (such as insular tourist 
operations). However, nothing precludes FRA from subsequently expanding 
the reach of a regulation or policy to the maximum extent permitted by 
statute, or from using its emergency authority under 49 U.S.C. 20104 at 
any time to address imminent hazards involving death or personal injury 
arising in operations otherwise excluded from its exercise of 
jurisdiction.
    FRA currently exercises jurisdiction over all railroad passenger 
operations in the nation except: (1) Urban rapid transit operations not 
operated on or over the general railroad system; and (2) tourist, 
scenic, or excursion operations that are not operated on or over the 
general system and are insular. Thus, in addition to intercity 
passenger service, FRA exercises jurisdiction over all commuter 
operations (whether or not connected to other railroads in the general 
system), all tourist operations operated on or over the general system 
and those off the general system that are not insular, and all other 
passenger operations that are operated on or over the general system. 
FRA will assert jurisdiction over high speed intercity rail service 
even if completely separated from the general railroad system that now 
exists and magnetic levitation systems that are not urban rapid 
transit.
    Some current and planned passenger operations in metropolitan areas 
are often referred to as ``light rail.'' In the transit industry, this 
term usually refers to lightweight passenger cars operating on rails in 
a right-of-way that is not separated from other traffic, such as street 
railways and trolleys. ``Heavy rail'' generally refers to cars 
operating on rails that are in separate rights-of-way from which all 
other vehicular traffic is excluded. In transit terms, heavy rail is 
also known as ``rapid rail,'' ``subway,'' or ``elevated railway.'' 
Conventional rail equipment such as that used by freight railroads, 
Amtrak, and many commuter railroads is different from, and considerably 
heavier and structurally stronger than, either light or heavy rail 
equipment, as those terms are used in the transit industry. Although 
this equipment is sometimes referred to as ``heavy'' rail, we will use 
the term ``conventional'' to avoid confusion between the different ways 
``heavy'' is used in the transit and general railroad communities. The 
greatest risk inherent in the shared use of the trackage is a collision 
between the light rail equipment and conventional equipment. The light 
rail vehicles are not designed to withstand such a collision with far 
heavier equipment. Were such a crash to occur with either or both 
trains operating at high speeds, the results for passengers in the 
light rail vehicle could be catastrophic. (Mixing of heavy rail transit 
and conventional railroad operations is not likely, but would present 
most of the same concerns associated with light rail. Those concerns 
could be more or less acute, depending on operating speeds and other 
factors. Although heavy rail transit is not directly addressed in this 
notice, FRA would expect to apply similar principles to such a shared 
use situation.)
    Rapid transit operations may involve use of either light or heavy 
transit equipment. However, it is the nature and location of the 
operation, not the nature of the equipment, that determines whether FRA 
has jurisdiction under the safety statutes. The sole statutory 
exception is for ``rapid transit operations in an urban area that are 
not connected to the general railroad system of transportation.'' 49 
U.S.C. 20102. The first jurisdictional question is whether the 
operations are in the nature of rapid

[[Page 59050]]

transit. If the operation is a commuter railroad, FRA has jurisdiction 
regardless of its connection to other railroads, and in fact considers 
the operation itself to be part of the general railroad system. To 
assist in making these determinations, FRA has devised definitions of 
``commuter'' and ``rapid transit'' operations, which are set forth 
below in the proposed revision to its statement of policy in 49 CFR 
part 209, appendix A. If the operation is rapid transit, the next 
question is whether it is connected to the general railroad system. If 
so, FRA has jurisdiction despite the rapid transit nature of the 
system. As explained fully below, however, in the revisions to its 
published statement of policy, FRA considers some connections to the 
general system to be insufficient to warrant exercise of its 
jurisdiction over a transit operation. Moreover, FRA intends to 
exercise jurisdiction over a transit operation that does have 
significant connections to the general system only to the extent it is 
connected, not over the entire transit system.
    Only two light rail operations (in San Diego and Baltimore) 
currently share trackage with conventional equipment. In exercising 
jurisdiction over these lines jointly used by light rail and a freight 
railroad, FRA has made specific accommodations for the differences in 
equipment and operations that distinguish these systems from more 
conventional intercity or commuter operations. We have generally 
addressed these joint use arrangements by exercising jurisdiction over 
just those elements of the system also used by the freight line, such 
as the track, signals, grade crossing warning devices, and dispatching. 
The leading example is the San Diego Trolley line. FRA has not actively 
exercised jurisdiction over the time-separated passenger operations on 
the freight line or over any aspects of the trolley's operation on its 
separate street trackage. There, the fact that the passenger operations 
are completely separated in time from the limited period during which 
freight operations occur was very persuasive in FRA's policy 
determination not to exercise its jurisdiction more aggressively.
    Of course, most of FRA's regulations apply on their face to all 
railroads that operate on the general railroad system (as do the light 
rail lines in San Diego and Baltimore). In the absence of a waiver, 
these rules technically apply. As a policy matter, FRA has decided, up 
to this point, not to insist on the filing of waiver applications for 
the time-separated light rail operations. However, various factors call 
for a more clearly defined policy with regard to light rail operations 
on the general system. First, the number of such operations being 
planned is increasing quickly across the nation. The informal 
arrangements currently in place for the two current operations will not 
suffice for a wide variety of light rail operations in many locations.
    Second, FRA's recent issuance of two rules (passenger train 
emergency preparedness and passenger equipment) dealing directly with 
passenger operations makes it imperative that all current or planned 
passenger operations to which those rules would apply have a plan for 
either complying with the rules or seeking a waiver from them. For 
example, in issuing its passenger equipment rules (49 CFR part 238) in 
May 1999, FRA made clear that they will apply to light rail operations 
on the general system, encouraged the filing of waiver applications as 
early as possible, and noted that the two light rail shared use 
operations currently in existence were covered by the rule, subject to 
an appropriate period of consultation and adjustment. 64 FR 25543-
25544. It is clear that light rail equipment will not meet many of the 
passenger equipment standards, such as the 800,000 pound buff strength 
requirement. In that regard, FRA stated: ``Light rail operators will 
have to seek a waiver of the requirement and will have to plan their 
operations in such a way as to maximize the likelihood of obtaining 
such a waiver.'' Id. at 25545.
    Finally, from the point of view of regulatory compliance at the 
Federal and State levels, rail transit operators can presumably benefit 
from a comprehensive summary of what standards and procedures apply. 
This will assist in governing current conduct as well as aiding 
planners of such operations.
    FRA's existing published statement of agency policy (49 CFR part 
209, Appendix A) does not address light rail operations on the general 
system. Revising that published statement will provide timely guidance, 
especially in light of the number of joint use passenger/freight 
operations currently under development or being contemplated. The 
proposed changes to Appendix A are shown at the end of this document.

Waiver Petitions Concerning Shared Use of the General System by Light 
Rail and Other Railroads

    Light rail operators who intend to share use of the general 
railroad system with conventional equipment will either have to comply 
with FRA's safety rules or obtain a waiver of appropriate rules. By 
statute, FRA may grant a waiver of any rule or order if the waiver ``is 
in the public interest and consistent with railroad safety.'' 49 U.S.C. 
20103(d). Waiver petitions are reviewed by FRA's Railroad Safety Board 
(the ``Safety Board'') under the provisions of 49 CFR Part 211. Waiver 
petitions must contain the information required by 49 CFR 211.9. The 
Safety Board can, in granting a waiver, impose any conditions it 
concludes are necessary to assure safety or are in the public interest. 
If the conditions under which the waiver was granted change 
substantially, or unanticipated safety issues arise, FRA may modify or 
withdraw a waiver in order to ensure safety.
    FRA asks that the light rail operator and all other affected 
railroads jointly file a Petition for Approval of Shared Use. Like all 
waiver petitions, a Petition for Approval of Shared Use will be 
reviewed by the Safety Board. FTA will appoint a non-voting liaison to 
the Safety Board, and that person will participate in the Safety 
Board's consideration of all such petitions. This close cooperation 
between the two agencies will ensure that FRA benefits from the 
insights, particularly with regard to operational and financial issues, 
that FTA can provide about light rail operations, as well as from FTA's 
knowledge of and contacts with state safety oversight programs. This 
working relationship will also ensure that FTA has a fuller 
appreciation of the safety issues involved in each specific shared use 
operation and a voice in shaping the safety requirements that will 
apply to such operations.
    In general, the greater the safety risks inherent in a proposed 
operation the greater will be the mitigation measures required. It is 
the intention of FTA and FRA to maintain the level of safety typical of 
conventional rail passenger operations while accommodating the 
character and needs of light rail transit operations.

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

    FRA resolves each waiver request on its own merits based on the 
information presented and the agency's own investigation of the issues. 
While FRA cannot state in advance what kinds of waivers will be granted 
or denied, we can provide guidance to those who may likely be 
requesting waivers to help ensure that their petitions address factors 
that FRA will no doubt consider important.
    FRA's procedural rules give a general description of what any 
waiver petition should contain, including an explanation of the nature 
and extent of

[[Page 59051]]

the relief sought; a description of the persons, equipment, 
installations, and locations to be covered by the waiver; an evaluation 
of expected costs and benefits; and relevant safety data. 49 CFR 211.9. 
The procedural rules, of course, are not specifically tailored to 
situations involving light rail operations over the general system, 
where waiver petitions are likely to involve many of FRA's regulatory 
areas. In such situations, FRA suggests that a Petition for Approval of 
Shared Use address the following general factors.
    Description of operations. Explain the frequency and speeds of all 
operations on the line and the nature of the different operations. 
Explain the nature of any connections between the light rail and 
conventional operations.
     If the light rail line will operate on any segments that 
are not part of the general railroad system (e.g., a street railway 
portion), describe those segments and their connection with the general 
system segments. In such situations, explain, using the criteria of 
this statement of policy, whether the light rail operation is, in the 
petitioner's view, a commuter operation or urban rapid transit. The 
petition need not address the commuter/rapid transit issue if the light 
rail operations will be conducted entirely as part of or over the lines 
of the general system.
     If the light rail and conventional operations will share 
any trackage, describe precisely what the respective hours of operation 
will be for each type of equipment. If light rail and conventional 
operations will occur only at different times of day, describe what 
means of protection will ensure that the different types of equipment 
are not operated simultaneously on the same track, and how protection 
will be provided to ensure that, where one set of operations begins and 
the other ends, there can be no overlap that would possibly result in a 
collision.
     If the light rail and conventional operations will share 
trackage during the same time periods, the petitioners will face a 
steep burden of demonstrating that extraordinary safety measures will 
be taken to adequately reduce the likelihood and/or severity of a 
collision between conventional and light rail equipment to the point 
where the safety risks associated with joint use would be acceptable. 
Explain the nature of such simultaneous joint use. Describe the system 
of train control, the frequency and proximity of both types of 
operations, and all methods that would be used to prevent collisions. 
Include a quantitative risk assessment concerning the risk of collision 
between the light rail and conventional equipment under the proposed 
operating scenario.
    Description of Equipment. Describe all equipment that will be used 
by the light rail and conventional operations. Where the light rail 
equipment does not meet the standards of 49 CFR part 238, provide 
specifics on the crash survivability of the light rail equipment, such 
as static end strength, sill height, strength of corner posts and 
collision posts, side strength, etc.
    Given the structural incompatibility of light rail and conventional 
equipment, FRA has grave concerns about the prospect of operating these 
two types of equipment simultaneously on the same track. If the light 
rail and conventional operations will share trackage during the same 
time periods, provide an engineering analysis of the light rail 
equipment's resistance to damage in various types of collisions, 
including a worst case scenario involving a failure of the collision 
avoidance systems resulting in a collision between light rail and 
conventional equipment at track speeds.
    Alternative safety measures to be employed in place of each rule 
for which waiver is sought. The petition should specify exactly which 
rules the petitioner desires to be waived. For each rule, the petition 
should explain exactly how a level of safety at least equal to that 
afforded by the FRA rule will be provided by the alternative measures 
the petitioner proposes.
    Most light rail operations that entail some shared use of the 
general system will also have segments that are not on the general 
system. FTA's rules on rail fixed guideway systems will probably apply 
to those other segments. If so, the petition for waiver of FRA's rules 
should explain how the system safety program plan adopted under FTA's 
rules may affect safety on the portions of the system where FRA's rules 
apply. Under certain circumstances, effective implementation of such a 
plan may provide FRA sufficient assurance that adequate measures are in 
place to warrant waiver of certain FRA rules. In its petition, the 
light rail operator may want to certify that the subject matter 
addressed by the rule to be waived is addressed by the system safety 
plan and that the light rail operation will be monitored by the state 
safety oversight program. That is likely to expedite FRA's processing 
of the petition. FRA will analyze information submitted by the 
petitioner to demonstrate that a safety matter is addressed by the 
light rail operator's system safety plan. Alternately, conditional 
approval may be requested at an early stage in the project, and FRA 
would thereafter review the system safety program plan's status to 
determine readiness to commence operations. Where FRA grants a waiver, 
the state agency will oversee the area addressed by the waiver, but FRA 
will actively participate in partnership with FTA and the state agency 
to address any safety problems.

Factors to Address Related To Specific Regulations and Statutes

    Operators of light rail systems are likely to apply for waivers of 
many FRA rules. FRA offers the following suggestions on factors 
petitioners may want to address concerning specific areas of 
regulation. (All ``part'' references are to title 49 CFR.) Parts 209 
(Railroad Safety Enforcement Procedures), 211 (Rules of Practice), 212 
(State Safety Participation), and 216 (Special Notice and Emergency 
Order Procedures) are largely procedural rules that are unlikely to be 
the subject of waivers, so those parts are not discussed further.

Track, Structures, and Signals

Track Safety Standards (Part 213)
    For segments of a light rail line not involving operations over the 
general system, assuming the light rail operation meets the definition 
of ``rapid transit,'' the track safety standards do not apply. However, 
for general system track used by both the conventional and light rail 
lines, the standards apply and a waiver is very unlikely. A light rail 
operation that owns track over which the conventional railroad operates 
may wish to consider assigning responsibility for that track to the 
other railroad. If so, the track owner must follow the procedure set 
forth in 49 CFR 213.5(c). Where such an assignment occurs, the owner 
and assignee are responsible for compliance.
Signal Systems Reporting Requirements (Part 233)
    This part contains reporting requirements with respect to methods 
of train operation, block signal systems, interlockings, traffic 
control systems, automatic train stop, train control, and cab signal 
systems, or other similar appliances, methods, and systems. In the case 
of the separate street railway segments of a light rail line, assuming 
that the system meets the definition of ``rapid transit,'' the 
reporting requirements of this part do not apply. However, if a signal 
system failure occurs on general system track which is used by both 
conventional and light rail lines, and triggers the reporting 
requirements of this part, the light rail

[[Page 59052]]

operator must file, or cooperate fully in the filing of, a signal 
system report. The petition should explain whether the light rail 
operator or conventional railroad is responsible for maintaining the 
signal system. Assuming that the light rail operator (or a contractor 
hired by this operator) has responsibility for maintaining the signal 
system, that entity is the logical choice to file each signal failure 
report, and a waiver is very unlikely. Moreover, since a signal failure 
first observed by a light rail operator can later have catastrophic 
consequences for a conventional railroad using the same track, a waiver 
would jeopardize rail safety on that general system trackage. Even if 
the conventional railroad is responsible for maintaining the signal 
systems, the light rail operator must still assist the railroad in 
reporting all signal failures by notifying the conventional railroad of 
such failures.
Grade Crossing Signal System Safety (Part 234)
    This part contains minimum standards for the maintenance, 
inspection, and testing of highway-rail grade crossing warning systems, 
and also prescribes standards for the reporting of system failures and 
minimum actions that railroads must take when such warning systems 
malfunction. In the case of the separate street railway segments of a 
light rail line, assuming that the system meets the definition of 
``rapid transit,'' the reporting requirements of this part do not 
apply. However, if a grade crossing accident or warning activation 
failure occurs on general system track which is used by both 
conventional and light rail lines, and triggers the reporting 
requirements of this part, the light rail operator must file, or 
cooperate to ensure the filing of, a report to FRA within 24 hours of 
such an accident or a grade crossing signal system failure report 
concerning any failure that occurs during its operations. The petition 
should explain whether the light rail operator or conventional railroad 
is responsible for maintaining the grade crossing devices. Assuming 
that the light rail operator (or a contractor hired by this operator) 
has responsibility for maintaining the grade crossing devices, that 
entity is the logical choice to file each grade crossing signal failure 
report, and a waiver is very unlikely. Moreover, since a grade crossing 
warning device failure first observed by a light rail operator can 
later have catastrophic consequences for a conventional railroad using 
the same track, a waiver would jeopardize rail safety on that general 
system trackage. However, if the conventional railroad is responsible 
for maintaining the grade crossing devices, the light rail operator 
will still have to assist the railroad in reporting all grade crossing 
signal failures. Moreover, regardless of which railroad is responsible 
for maintenance of the grade crossing signals, any railroad (including 
a light rail operation) operating over a crossing that has experienced 
an activation failure, partial activation, or false activation must 
take the steps required by this rule to ensure safety at those 
locations. While the maintaining railroad will retain all of its 
responsibilities in such situations (such as contacting train crews and 
notifying law enforcement agencies), the operating railroad must 
observe requirements concerning flagging, train speed, and use of the 
locomotive's audible warning device.
Approval of Signal System Modifications (Part 235)
    This part contains instructions governing applications for approval 
of a discontinuance or material modification of a signal system or 
relief from the regulatory requirements of part 236. In the case of the 
separate street railway segments of a light rail line, assuming that 
the system meets the definition of ``rapid transit,'' the application 
requirements of this part do not apply, and no waiver would be 
necessary. In the case of a signal system located on general system 
track which is used by both conventional and light rail lines, a light 
rail operation is subject to this part only if it (or a contractor 
hired by the operator) owns or has responsibility for maintaining the 
signal system. If the conventional railroad does the maintenance, then 
that railroad would file any application submitted under this part; the 
light rail operation would have the right to protest the application 
under Sec. 235.20. The petition should discuss whether the light rail 
operator or conventional railroad is responsible for maintaining the 
signal system.
Standards for Signal and Train Control Systems (Part 236)
    This part contains rules, standards, and instructions governing the 
installation, inspection, maintenance, and repair of signal and train 
control systems, devices, and appliances. In the case of the separate 
street railway segments of a light rail line, assuming that the system 
meets the definition of ``rapid transit,'' the requirements of this 
part do not apply, and no waiver would be necessary. In the case of a 
signal system located on general system track which is used by both 
conventional and light rail lines, a light rail operation is subject to 
this part only if it (or a contractor hired by the operation) owns or 
has responsibility for installing, inspecting, maintaining, and 
repairing the signal system. If the light rail operation has these 
responsibilities, a waiver would be unlikely because a signal failure 
would jeopardize the safety of both the light rail operation and the 
conventional railroad. If the conventional railroad assumes all of the 
responsibilities under this part, the light rail operation would not 
need a waiver, but it would have to abide by all operational 
limitations imposed on this part and by the conventional railroad. The 
petition should discuss whether the light rail operator or conventional 
railroad has responsibility for installing, inspecting, maintaining, 
and repairing the signal system.

Motive Power and Equipment

Railroad Noise Emission Compliance Regulations (Part 210)
    If the light rail equipment would normally meet the standards in 
this rule, there would be little reason to seek a waiver of it. This 
part has an exception for ``street, suburban, or interurban electric 
railways unless operated as a part of the general railroad system of 
transportation.'' 49 CFR 210.3(b)(2). The petition should address 
whether this exception may apply to the light rail operation. The 
greater the integration of the light rail and conventional operations, 
the less likely this exception would apply. If it appears that the 
light rail system would neither meet the standards nor fit within the 
exception, the petition should address noise mitigation measures used 
on the system, especially as part of a system safety program.
Railroad Freight Car Safety Standards (Part 215)
    A light rail operator is likely to move freight cars only in 
connection with maintenance-of-way work. As long as such cars are 
properly stenciled in accordance with section 215.305, this part does 
not otherwise apply, and a waiver would seem unnecessary.
Rear End Marking Devices (Part 221)
    This part requires that each train occupying or operating on main 
line track be equipped with a display on the trailing end of the rear 
car of that train, and continuously illuminate or flash a marking 
device. The device, which must be approved by FRA, must have specific 
intensity, beam arc width, color, and flash rate characteristics. A 
light rail operation seeking a waiver of this part will need to explain 
how other marking

[[Page 59053]]

devices with which it equips its vehicles, or other means such as train 
control, will provide the same assurances as this part of a reduced 
likelihood of collisions attributable to the inconspicuity of the rear 
end of a leading train. The petition should describe the light rail 
vehicle's existing marking devices (e.g., headlights, brakelights, 
taillights, turn signal lights), and indicate whether the vehicle 
contains reflectors. If the light rail system will operate in both a 
conventional railroad environment and in streets mixed with motor 
vehicles, the petition should discuss whether adapting the design of 
the vehicle's lighting characteristics to conform to FRA's regulations 
would adversely affect the safety of its operations in the street 
environment. A light rail system that has a system safety program 
developed under FTA's rules may choose to discuss how that program 
addresses the need for equivalent levels of safety when its vehicles 
operate on conventional railroad corridors.
Safety Glazing Standards (Part 223)
    This part provides that passenger car windows be equipped with FRA-
certified glazing materials in order to reduce the likelihood of injury 
to railroad employees and passengers from the breakage and shattering 
of windows and avoid ejection of passengers from the vehicle in a 
collision. This part, in addition to requiring the existence of at 
least four emergency windows, also requires window markings and 
operating instructions for each emergency window, as well as for each 
window intended for emergency access, so as to provide the necessary 
information for evacuation of a passenger car. FRA will not permit 
operations to occur on the general system in the absence of effective 
alternatives to the requirements of this part that provide an 
equivalent level of safety. The petition should explain what equivalent 
safeguards are in place to provide the same assurance as part 223 that 
passengers and crewmembers are safe from the effects of objects 
striking a light rail vehicle's windows. The petition should also 
discuss the design characteristics of its equipment when it explains 
how the safety of its employees and passengers will be assured during 
an evacuation in the absence of windows meeting the specific 
requirements of this part. A light rail system that has a system safety 
program plan developed under FTA's rule may be able to demonstrate that 
the plan satisfies the safety goals of this part.
Locomotive Safety Standards (Part 229)
    This part contains minimum safety standards for all locomotives, 
except those propelled by steam power. FRA recognizes that due to the 
unique characteristics of light rail equipment, some of these 
provisions may be irrelevant to light rail equipment, and that others 
may not fit properly in the context of light rail operations. To the 
extent that the light rail operation encompasses the safety risks 
addressed by the provisions of this part, a waiver petition should 
explain precisely how the light rail system's practices will provide 
for the safe condition and operation of its locomotive equipment. In 
order to reduce the risk of grade crossing accidents, it is important 
that all locomotives used by both conventional railroads and light rail 
systems present the same distinctive profile to motor vehicle operators 
approaching grade crossings. If uniformity is sacrificed by permitting 
light rail systems to operate locomotives with varying levels of 
illumination, or with lights placed in different locations on the 
equipment, safety could be compromised. Accordingly, although light 
rail headlights are likely to be of lower candela, the vehicle design 
should maintain the triangular pattern required of other locomotives 
and cab cars to the extent practicable.
Safety Appliance Laws (49 U.S.C. 20301-20305)
    Since certain safety appliance requirements (e.g., automatic 
couplers) are statutory, they can only be ``waived'' by FRA under the 
exemption conditions set forth in 49 U.S.C. 20306. Because exemptions 
requested under this statutory provision do not involve a waiver of a 
safety rule, regulation, or standard (see 49 CFR 211.41), FRA is not 
required to follow the rules of practice for waivers contained in part 
211. However, whenever appropriate, FRA will combine its consideration 
of any request for an exemption under Sec. 20306 with its review under 
part 211 of a light rail operation's petition for waivers of FRA's 
regulations.
    FRA may grant exemptions from the statutory safety appliance 
requirements in 49 U.S.C. 20301-20305 only if application of such 
requirements would ``preclude the development or implementation of more 
efficient railroad transportation equipment or other transportation 
innovations.'' 49 U.S.C. 20306. The exemption for technological 
improvements was originally enacted to further the implementation of a 
specific type of freight car, but the legislative history shows that 
Congress intended the exemption to be used elsewhere so that ``other 
types of railroad equipment might similarly benefit.'' S. Rep. 96-614 
at 8 (1980), reprinted in 1980 U.S.C.C.A.N. 1156,1164.
    FRA recognizes the potential public benefits of allowing light rail 
systems to take advantage of underutilized urban freight rail corridors 
to provide service that, in the absence of the existing right-of-way, 
would be prohibitively expensive. Any petitioner requesting an 
exemption for technological improvements should carefully explain how 
being forced to comply with the existing statutory safety appliance 
requirements would conflict with the exemption exceptions set forth at 
49 U.S.C. 20306. The petition should also show that granting the 
exemption is in the public interest and is consistent with assuring the 
safety of the light rail operator's employees and passengers.
Safety Appliance Standards (Part 231)
    The regulations in this part specify the requisite location, 
number, dimensions, and manner of application of a variety of railroad 
car safety appliances (e.g., handbrakes, ladders, handholds, steps), 
and directly implement a number of the statutory requirements found in 
49 U.S.C. 20301-20305. These very detailed regulations are intended to 
ensure that sufficient safety appliances are available and able to 
function safely and securely as intended.
    FRA recognizes that due to the unique characteristics of light rail 
equipment, some of these provisions may be irrelevant to light rail 
operation, and that others may not fit properly in the context of light 
rail operations (e.g., crewmembers typically do not perform yard duties 
from positions outside and adjacent to the light rail vehicle or near 
the vehicle's doors). However, to the extent that the light rail 
operation encompasses the safety risks addressed by the regulatory 
provisions of this part, a waiver petition should explain precisely how 
the light rail system's practices will provide for the safe operation 
of its passenger equipment. The petition should focus on the design 
specifications of the equipment, and explain how the light rail 
system's operating practices, and its intended use of the equipment, 
will satisfy the safety purpose of the regulations while providing at 
least an equivalent level of safety.
Passenger Equipment Safety Standards (Part 238)
    This part prescribes minimum Federal safety standards for railroad 
passenger

[[Page 59054]]

equipment. Since a collision on the general railroad system between 
light rail equipment and conventional rail equipment could prove 
catastrophic, because of the significantly greater mass and structural 
strength of the conventional equipment, a waiver petition should 
describe the light rail operation's system safety program that is in 
place to minimize the risk of such a collision. The petition should 
discuss the light rail operation's operating rules and procedures, 
train control technology, and signal system. If the light rail operator 
and conventional railroad will operate simultaneously on the same 
track, the petition should include a quantitative risk assessment that 
incorporates design information and provide an engineering analysis of 
the light rail equipment and its likely performance in derailment and 
collision scenarios. The petitioner should also demonstrate that risk 
mitigation measures to avoid the possibility of collisions, or to limit 
the speed at which a collision might occur might occur, will be 
employed in connection with the use of the equipment on a specified 
shared-use rail line. This part also contains requirements concerning 
power brakes on passenger trains, and a petitioner seeking a waiver in 
this area should refer to these requirements, not those found in 49 CFR 
part 232.

Operating Practices

Railroad Workplace Safety (Part 214)
    This part contains standards for protecting bridge workers and 
roadway workers. The petition should explain whether the light rail 
operator or conventional railroad is responsible for bridge work on 
shared general system trackage. If the light rail operator does the 
work and does similar work on segments outside of the general system, 
it may wish to seek a waiver permitting it to observe OSHA standards 
throughout its system.
    There are no comparable OSHA standards protecting roadway workers. 
The petition should explain which operator is responsible for track and 
signal work on the shared segments. If the light rail operator does 
this work, the petition should explain how the light rail operator 
protects these workers. However, to the extent that protection varies 
significantly from FRA's rules, a waiver permitting use of the light 
rail system's standards could be very confusing to train crews of the 
conventional railroad who follow FRA's rules elsewhere. A waiver of 
this rule is unlikely. A petition should address how such confusion 
would be avoided and safety of roadway workers would be ensured.
Railroad Operating Rules (part 217)
    This part requires filing of a railroad's operating rules and that 
employees be instructed and tested on compliance with them. A light 
rail operation would not likely have difficulty complying with this 
part. However, if a waiver is desired, the light rail system will need 
to explain how other safeguards it has in place provide the same 
assurance that operating employees are trained and periodically tested 
on the rules that govern train operation. A light rail system that has 
a system safety program plan developed under FTA's rules may be in a 
good position to give such an assurance.
Railroad Operating Practices (Part 218)
    This part requires railroads to follow certain practices in various 
aspects of their operations (protection of employees working on 
equipment, protection of trains and locomotives from collisions in 
certain situations, prohibition against tampering with safety devices, 
protection of occupied camp cars). Some of these provisions (e.g., camp 
cars) may be irrelevant to light rail operations. Others may not fit 
well in the context of light rail operations. To the extent the light 
rail operation presents the risks addressed by the various provisions 
of this part, a waiver provision should explain precisely how the light 
rail system's practices will address those risks. FRA is not likely to 
waive the prohibition against tampering with safety devices, which 
would seem to present no particular burden to light rail operations. 
Moreover, blue signal regulations, which protect employees working on 
or near equipment, are not likely to be waived to the extent that such 
work is performed on track shared by a light rail operation and a 
conventional railroad, where safety may best be served by uniformity.
Control of Alcohol and Drug Use (Part 219)
    FRA will not permit operations to occur on the general system in 
the absence of effective rules governing alcohol and drug use by 
operating employees. FTA's own rules may provide a suitable alternative 
for a light rail system that is otherwise governed by those rules. 
However, to the extent that light rail and conventional operations 
occur simultaneously on the same track, FRA is not likely to apply 
different rules to the two operations, particularly with respect to 
post-accident testing, for which FRA requirements are more extensive.
Railroad Communications (Part 220)
    A light rail operation is likely to have an effective system of 
radio communication that may provide a suitable alternative to FRA's 
rules. However, the greater the need for radio communication between 
light rail personnel (e.g., train crews or dispatchers) and personnel 
of the conventional railroad (e.g., train crews, roadway workers), the 
greater will be the need for standardized communication rules and, 
accordingly, the less likely will be a waiver.
Railroad Accident/Incident Reporting (Part 225)
    FRA's accident/incident information is very important in the 
agency's decisionmaking on regulatory issues and strategic planning. A 
waiver petition should indicate precisely what types of accidents and 
incidents it would report, and to whom, under any alternative it 
proposes. FRA is not likely to waive its reporting requirements 
concerning train accidents or highway-rail grade crossing collisions 
that occur on the general railroad system. Reporting of accidents under 
FTA's rules is quite different and would not provide an effective 
substitute. However, with regard to employee injuries, the light rail 
operation may, absent FRA's rules, otherwise be subject to reporting 
requirements of FTA and OSHA and may have an interest in uniform 
reporting of those injuries wherever they occur on the system. 
Therefore, it is more likely that FRA would grant a waiver with regard 
to reporting of employee injuries.
Hours of Service Laws (49 U.S.C. 21101-21108)
    The hours of service laws apply to all railroads subject to FRA's 
jurisdiction, and govern the maximum work hours and minimum off-duty 
periods of employees engaged in one or more of the three categories of 
covered service described in 49 U.S.C. 21101. If an individual performs 
more than one kind of covered service during a tour of duty, then the 
most restrictive of the applicable limitations control. Under current 
law, a light rail operation could request a waiver of the substantive 
provisions of the hours of service laws only under the ``pilot 
project'' provision described in 49 U.S.C. 21108, provided that the 
request is based upon a joint petition submitted by the railroad and 
its affected labor organizations. Because waivers requested under this 
statutory provision do not involve a waiver of a

[[Page 59055]]

safety rule, regulation, or standard (see 49 CFR 211.41), FRA is not 
required to follow the rules of practice for waivers contained in part 
211. However, whenever appropriate, FRA will combine its consideration 
of any request for a waiver under Sec. 21108 with its review under part 
211 of a light rail operation's petition for waivers of FRA's 
regulations.
    If such a statutory waiver is desired, the light rail system will 
need to assure FRA that the waiver of compliance is in the public 
interest and consistent with railroad safety. The waiver petition 
should include a discussion of what fatigue management strategies will 
be in place for each category of covered employees in order to minimize 
the effects of fatigue on their job performance. However, FRA is 
unlikely to grant a statutory waiver covering employees of a light rail 
operation who dispatch the trains of a conventional railroad or 
maintain a signal system affecting shared use trackage.
Hours of Service Recordkeeping (Part 228)
    This part prescribes reporting and recordkeeping requirements with 
respect to the hours of service of employees who perform the job 
functions set forth in 49 U.S.C. 21101. As a general rule, FRA 
anticipates that any waivers granted under this part will only exempt 
the same groups of employees for whom a light rail system has obtained 
a waiver of the substantive provisions of the hours of service laws 
under 49 U.S.C. 21108. Since it is important that FRA be able to verify 
that a light rail operation is complying with the on- and off-duty 
restrictions of the hour of service laws for all employees not covered 
by a waiver of the laws' substantive provisions, it is unlikely that 
any waiver granted of the reporting and recordkeeping requirements 
would exclude those employees. However, in a system with fixed work 
schedules that do not approach 12 hours on duty in the aggregate, it 
may be possible to utilize existing payroll records to verify 
compliance.
Passenger Train Emergency Preparedness (Part 239)
    This part prescribes minimum Federal safety standards for the 
preparation, adoption, and implementation of emergency preparedness 
plans by railroads connected with the operation of passenger trains. 
FRA's expectation is that by requiring affected railroads to provide 
sufficient emergency egress capability and information to passengers, 
along with mandating that these railroads coordinate with local 
emergency response officials, the risk of death or injury from 
accidents and incidents will be lessened. A waiver petition should 
state whether the light rail system has an emergency preparedness plan 
in place under a state system safety program developed under FTA's 
rules for the light rail operator's separate street railway segments. 
Under a system safety program, a light rail operation is likely to have 
an effective plan for dealing with emergency situations that may 
provide an equivalent alternative to FRA's rules. To the extent that 
the light rail operation's plan relates to the various provisions of 
this part, a waiver petition should explain precisely how each of the 
requirements of this part is being addressed. The petition should 
especially focus on the issues of communication, employee training, 
passenger information, liaison relationships with emergency responders, 
and marking of emergency exits.
Qualification and Certification of Locomotive Engineers (Part 240)
    This part contains minimum Federal safety requirements for the 
eligibility, training, testing, certification, and monitoring of 
locomotive engineers. Those who operate light rail trains may have 
significant effects on the safety of light rail passengers, motorists 
at grade crossings, and, to the extent trackage is shared with 
conventional railroads, the employees and passengers of those 
railroads. The petition should describe whether a light rail system has 
a system safety plan developed under FTA's rules that is likely to have 
an effective means of assuring that the operators, or ``engineers,'' of 
its equipment receive the necessary training and have proper skills to 
operate a light rail vehicle in shared use on the general railroad 
system. The petition should explain what safeguards are in place to 
ensure that light rail engineers receive at least an equivalent level 
of training, testing, and monitoring on the rules governing train 
operations to that received by locomotive engineers employed by 
conventional railroads.

Waivers That May be Appropriate for Time-Separated Light Rail 
Operations

    The foregoing discussion of factors to address in a petition for 
approval of shared use concerns all such petitions and, accordingly, is 
quite general. FRA is willing to provide more specific guidance on 
where waivers may be likely with regard to light rail operations that 
are time-separated from conventional operations. FRA's greatest concern 
with regard to shared use of the general system is a collision between 
light rail and conventional trains on the same track. Because the 
results could well be catastrophic, FRA places great emphasis on 
avoiding such collisions. The surest way to guarantee that such 
collisions will not occur is to strictly segregate light rail and 
conventional operations by time of day so that the two types of 
equipment never share the same track at the same time. This is not to 
say that FRA will not entertain waiver petitions that rely on other 
methods of collision avoidance such as sophisticated train control 
systems. However, petitioners who do not intend to separate light rail 
from conventional operations by time of day will face a very steep 
burden of demonstrating an acceptable level of safety. FRA does not 
insist that all risk of collision be eliminated. However, given the 
enormous severity of the likely consequences of a collision, the 
demonstrated risk of such an event must be extremely remote.
    There are various ways of providing such strict separation by time. 
For example, freight operations could be limited to the hours of 
midnight to 5 a.m. when light rail operations are prohibited. Or, there 
might be both a nighttime and a mid-day window for freight operation. 
The important thing is that the arrangement not permit simultaneous 
operation on the same track by clearly defining specific segments of 
the day when only one type of operation may occur. Mere spacing of 
train movements by a train control system does not constitute this 
temporal separation.
    FRA is very likely to grant waivers of many of its rules where 
complete temporal separation between light rail and conventional 
operations is demonstrated in the waiver request. The chart below, 
which differs only slightly from the one published in the joint FRA/FTA 
policy statement issued in May 1999, lists each of FRA's railroad 
safety rules and provides FRA's early thinking on whether the operator 
of a light rail system that shares trackage with a conventional 
railroad should expect to comply with the rule on the shared track or 
may receive a waiver. This chart assumes that the operations of the 
local rail transit agency on the general railroad system are completely 
separated in time from conventional railroad operations, and that the 
light rail operation poses no atypical safety hazards. FRA's procedural 
rules on matters such as enforcement (49 CFR parts 209 and 216), and 
its statutory authority to take emergency action to address an imminent 
hazard of death or

[[Page 59056]]

injury, would apply to these operations in all cases.
    Where waivers are granted, a light rail operator would be expected 
to operate under a system safety plan developed in accordance with the 
FTA state safety oversight program. The state safety oversight agency 
would be responsible for the safety oversight of the light rail 
operation, even on the general system, with regard to aspects of that 
operation for which a waiver is granted. FRA will actively participate 
in partnership with the state agency to address any safety problems. If 
the conditions under which the waiver was granted change substantially, 
or unanticipated safety issues arise, FRA may modify or withdraw a 
waiver in order to ensure safety.

         Time-Separated Light Rail Operations: Possible Waivers
------------------------------------------------------------------------
  Title 49 CFR
      part        Subject of rule    Likely treatment       Comments
------------------------------------------------------------------------
                     Track, Structures, and Signals
------------------------------------------------------------------------
213............  Track Safety       Comply (assuming   If the
                  Standards.         light rail         conventional RR
                                     operator owns      owns the track,
                                     track or has       light rail will
                                     been assigned      have to observe
                                     responsibility     speed limits for
                                     for it).           class of track.
233, 235, 236..  Signal and train   Comply (assuming   If conventional
                  control.           light rail         RR maintains
                                     operator or its    signals, light
                                     contractor has     rail will have
                                     responsibility     to abide by
                                     for signal         operational
                                     maintenance).      limitations and
                                                        report signal
                                                        failures.
234............  Grade Crossing     Comply (assuming   If conventional
                  Signals.           light rail         RR maintains
                                     operator or its    devices, light
                                     contractor has     rail will have
                                     responsibility     to comply with
                                     for crossing       sections
                                     devices).          concerning
                                                        activation
                                                        failures and
                                                        false
                                                        activations.
213, Appendix C  Bridge safety      Not a rule.        .................
                  policy.            Compliance
                                     voluntary.
------------------------------------------------------------------------
                       Motive Power and Equipment
------------------------------------------------------------------------
210............  Noise emission...  Waive............  State safety
                                                        oversight.
215............  Freight car        Waive............  State safety
                  safety standards.                     oversight.
221............  Rear end marking   Waive............  State safety
                  devices.                              oversight.
223............  Safety glazing     Waive............  State safety
                  standards.                            oversight.
229............  Locomotive safety  Waive, except      State safety
                  standards.         perhaps for        oversight.
                                     alerting lights,
                                     which are
                                     important for
                                     grade crossing
                                     safety.
231*...........  Safety appliance   Waive............  State safety
                  standards.                            oversight; see
                                                        note below on
                                                        statutory
                                                        requirements.
238............  Passenger          Waive............  State safety
                  equipment                             oversight.
                  standards.
------------------------------------------------------------------------
                           Operating Practices
------------------------------------------------------------------------
214............  Bridge Worker....  Waive............  OSHA standards.
214............  Roadway Worker     Comply...........  .................
                  Safety.
217............  Operating Rules..  Waive............  State safety
                                                        oversight.
218............  Operating          Waive, except for  State safety
                  Practices.         prohibition on     oversight.
                                     tampering with
                                     safety devices
                                     related to
                                     signal system,
                                     and blue signal
                                     rules on shared
                                     track.
219............  Alcohol and Drug.  Waive if FTA rule  FTA rule may
                                     otherwise          apply.
                                     applies.
220............  Radio              Waive, except to   State safety
                  communications.    extent             oversight.
                                     communications
                                     with freight
                                     trains and
                                     roadway workers
                                     are necessary.
225............  Accident           Comply with        Employee injuries
                  reporting and      regard to train    would be
                  investigation.     accidents and      reported under
                                     crossing           FTA or OSHA
                                     accidents; waive   rules.
                                     as to injuries.
228**..........  Hours of service   Waive (in concert  See note below on
                  recordkeeping.     with waiver of     possible waiver
                                     statute); waiver   of statutory
                                     not likely for     requirements.
                                     personnel who
                                     dispatch
                                     conventional RR
                                     or maintain
                                     signal system on
                                     shared use track.
239............  Passenger train    Waive............  State safety
                  emergency                             oversight.
                  preparedness.
240............  Engineer           Waive............  State safety
                  certification.                        oversight.
------------------------------------------------------------------------
* Certain safety appliance requirements (e.g., automatic couplers) are
  statutory and can only be waived under the conditions set forth in 49
  U.S.C. 20306, which permits exemptions if application of the
  requirements would ``preclude the development or implementation of
  more efficient railroad transportation equipment or other
  transportation innovations.'' If consistent with employee safety, FRA
  could probably rely on this provision to address most light rail
  equipment that could not meet the standards.
** Currently, 49 U.S.C. 21108 permits FRA to waive substantive
  provisions of the hours of service laws based upon a joint petition by
  the railroad and affected labor organizations, after notice and an
  opportunity for a hearing. This is a ``pilot project'' provision, so
  waivers are limited to two years but may be extended for additional
  two-year periods after notice and an opportunity for comment.

    In light of the foregoing, FRA proposes to amend its published 
statement of agency policy in the manner explained below.

List of Subjects in 49 CFR Part 209

    Railroad safety, Reporting and recordkeeping requirements.

The Proposed Policy Statement

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

[[Page 59057]]

PART 209--[AMENDED]

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

    Authority: 49 U.S.C. 20103, 20107, 20111, 20112, 20114, and 49 
CFR 1.49.

    2. Appendix A to 49 CFR part 209 is amended as follows.
    A. Under the heading ``The Extent and Exercise of FRA's Safety 
Jurisdiction,'' the seventh paragraph (which begins, ``For example, all 
of FRA's regulations'') is removed, and the following paragraphs are 
added in its place:

Appendix A to Part 209--Interim Statement of Agency Policy 
Concerning Enforcement of the Federal Railroad Safety Laws

* * * * *
    For example, all of FRA's regulations exclude from their reach 
railroads whose entire operations are confined to an industrial 
installation (i.e., ``plant railroads''), such as those in steel 
mills that do not go beyond the plant's boundaries. E.g., 49 CFR 
225.3(a)(1) (accident reporting regulations). Other regulations 
exclude not only plant railroads but all other railroads that are 
not operated as a part of, or over the lines of, the general 
railroad system of transportation. E.g., 49 CFR 214.3 (railroad 
workplace safety). By ``general railroad system of transportation,'' 
FRA refers to the network of standard gage track over which goods 
may be transported throughout the nation and passengers may travel 
between cities and within metropolitan and suburban areas. Much of 
this network is interconnected, so that a rail vehicle can travel 
across the nation without leaving the system. However, mere physical 
connection to the system does not bring trackage within it. For 
example, trackage within an industrial installation that is 
connected to the network only by a switch for the receipt of 
shipments over the system is not a part of the system.
    Moreover, portions of the network may lack a physical connection 
but still be part of the system by virtue of the nature of 
operations that take place there. For example, the Alaska Railroad 
is not physically connected to the rest of the general system but is 
part of it. The Alaska Railroad exchanges freight cars with other 
railroads by car float and exchanges passengers with interstate 
carriers as part of the general flow of interstate commerce. 
Similarly, an intercity high speed rail system with its own right of 
way would be part of the general system although not physically 
connected to it. The presence on a rail line of any of these types 
of railroad operations is a sure indication that such trackage is 
part of the general system: the movement of freight cars in trains 
outside the confines of an industrial installation, the movement of 
intercity passenger trains, or the movement of commuter trains 
within a metropolitan or suburban area. Urban rapid transit 
operations are ordinarily not part of the general system, but may 
have sufficient connections to that system to warrant exercise of 
FRA's jurisdiction (see discussion of passenger operations, below). 
Tourist railroad operations are not inherently part of the general 
system and, unless operated over the lines of that system, are 
subject to few of FRA's regulations.
    The boundaries of the general system are not static. For 
example, a portion of the system may be purchased for the exclusive 
use of a single private entity and all connections, save perhaps a 
switch for receiving shipments, severed. Depending on the nature of 
the operations, this could remove that portion from the general 
system. The system may also grow, as with the establishment of 
intercity service on a brand new line. However, the same trackage 
cannot be both inside and outside of the general system depending 
upon the time of day. If trackage is part of the general system, 
restricting a certain type of traffic over that trackage to a 
particular portion of the day does not change the nature of the 
line--it remains the general system.
* * * * *
    B. Appendix A to 49 CFR part 209 is further amended by adding the 
following paragraphs immediately before the section called 
``Extraordinary Remedies:''
* * * * *

FRA'S Policy on Jurisdiction Over Passenger Operations

    Under the Federal railroad safety laws, FRA has jurisdiction 
over all railroads except urban rapid transit operations not 
connected to the general railroad system of transportation. 49 
U.S.C. 20102. Within the limits imposed by this authority, FRA 
exercises jurisdiction over all railroad passenger operations, 
regardless of the equipment they use, unless FRA has specifically 
stated below an exception to its exercise of jurisdiction for a 
particular type of operation. This policy is stated in general terms 
and does not change the reach of any particular regulation under its 
applicability section. That is, while FRA may generally assert 
jurisdiction over a type of operation here, a particular regulation 
may exclude that kind of operation from its reach. Therefore, this 
statement should be read in conjunction with the applicability 
sections of all of FRA's regulations.

Intercity Passenger Operations

    FRA exercises jurisdiction over all intercity passenger 
operations. Because of the nature of the service they provide, they 
are all considered part of the general railroad system, even if not 
physically connected to other portions of the system.

Commuter Operations

    FRA exercises jurisdiction over all commuter operations. 
Congress apparently intended that FRA do so when it enacted the 
Federal Railroad Safety Act of 1970, and made that intention very 
clear in the 1982 and 1988 amendments to that act. FRA has attempted 
to follow that mandate consistently. A commuter system's connection 
to other railroads is not relevant under the rail safety statutes. 
In fact, FRA considers commuter railroads to be part of the general 
railroad system regardless of such connections.
    In general, FRA considers an operation to be a commuter railroad 
if its primary purpose is transporting commuters to and from work 
within a metropolitan area and no substantial portion of its 
operations is devoted to moving people within a city's boundaries. 
Examples of commuter railroads include Metra and the Northern 
Indiana Commuter Transportation District in the Chicago area; 
Virginia Railway Express and MARC in the Washington area; and Metro-
North, the Long Island Railroad, New Jersey Transit, and the Port 
Authority Trans Hudson (PATH) in the New York area. Incidental 
service from point to point within a an urban area does not make an 
operation something other than a commuter railroad if the primary 
purpose is serving commuters within the broader metropolitan and 
suburban area.

Other Short Haul Passenger Service

    The federal railroad safety statutes give FRA authority over 
``commuter or other short-haul railroad passenger service in a 
metropolitan or suburban area.'' 49 U.S.C. 20902. This means that, 
in addition to commuter service, there are other short-haul types of 
service that Congress intended that FRA reach. For example, a 
passenger system designed primarily to move intercity travelers from 
a downtown area to an airport, or from an airport to a resort area, 
would be one that does not have the transportation of commuters 
within a metropolitan area as its primary purpose. FRA would 
ordinarily exercise jurisdiction over such a system as ``other 
short-haul service'' unless it meets the definition of urban rapid 
transit and is not connected in a significant way to the general 
system.

Urban Rapid Transit Operations

    One type of short-haul passenger service requires special 
treatment under the safety statutes: rapid transit operations in an 
urban area. Only these operations are excluded from FRA's 
jurisdiction, and only if they are not connected to the general 
system. FRA considers an operation to be urban rapid transit if one 
of its major purposes is, and a substantial portion of its 
operations is devoted to, moving people from point to point within 
an urban area where there are multiple stops within the city for 
that purpose. Such an operation could still have the transportation 
of commuters within the larger metropolitan area as one of its major 
purposes without being considered a commuter railroad. For example, 
the Washington Metro system carries large numbers of people to and 
from the suburbs daily, but one of its primary functions is to 
provide transportation within the city, where a large proportion of 
its station stops are located. Other examples of urban rapid transit 
systems include the CTA in Chicago and the subway systems in New 
York, Boston, and Philadelphia. The type of equipment used by such a 
system is not determinative of its status. However, the kinds of 
vehicles ordinarily associated with street railways, trolleys, 
subways, and elevated railways are the types of vehicles

[[Page 59058]]

most often used for urban rapid transit operations.
    FRA can exercise jurisdiction over a rapid transit operation 
only if it is connected to the general railroad system, but need not 
exercise jurisdiction over every such operation that is so 
connected. FRA is aware of several different ways that rapid transit 
operations can be connected to the general system. Our policy on the 
exercise of jurisdiction will depend upon the nature of the 
connection(s). In general, a connection that involves operation of 
transit equipment as a part of, or over the lines of, the general 
system will trigger FRA's exercise of jurisdiction. Below, we review 
some of the more common types of connections and their effect on the 
agency's exercise of jurisdiction. This is not meant to be an 
exhaustive list of connections.

Rapid Transit Connections Sufficient To Trigger FRA's Exercise of 
Jurisdiction

    Certain types of connections to the general railroad system will 
cause FRA to exercise jurisdiction over the rapid transit line to 
the extent it is connected. FRA will exercise jurisdiction over the 
portion of a rapid transit operation that is conducted as a part of 
or over the lines of the general system. For example, rapid transit 
operations are conducted on the lines of the general system where 
the rapid transit operation and other railroad use the same track, 
and where the rapid transit operation and other railroad have a 
railroad crossing at grade. In the first example, FRA will exercise 
its jurisdiction over the operations conducted on the general 
system. In the second example, FRA will exercise its jurisdiction 
sufficiently to assure safe operations over the at-grade railroad 
crossing. FRA will also exercise jurisdiction to a limited extent 
over a rapid transit operation that, while not operated on the same 
tracks as the conventional railroad, is connected to the general 
system by virtue of operating in a shared right of way involving 
joint control of trains. For example, if a rapid transit line and 
freight railroad were to operate over a movable bridge and were 
subject to the same authority concerning its use (e.g., the same 
tower operator controls trains of both operations), FRA will 
exercise jurisdiction in a manner sufficient to ensure safety at 
this point of connection. FRA believes these connections present 
sufficient intermingling of the rapid transit and general system 
operations to pose significant hazards to one or both operations.
    In situations involving joint use of the same track, it does not 
matter that the rapid transit operation occupies the track only at 
times when the freight, commuter, or intercity passenger railroad 
that shares the track is not operating. While such time separation 
could provide the basis for waiver of certain of FRA's rules, it 
does not mean that FRA will not exercise jurisdiction. However, FRA 
will exercise jurisdiction over only the portions of the rapid 
transit operation that are conducted on the general system. For 
example, a rapid transit line that operates over the general system 
for a portion of its length but has significant portions of street 
railway that are not used by conventional railroads would be subject 
to FRA's rules only with respect to the general system portion. The 
remaining portions would not be subject to FRA's rules. If the non-
general system portions of the rapid transit line are considered a 
``rail fixed guideway system'' under 49 CFR part 659, those rules, 
issued by the Federal Transit Administration, would apply to them. 
Similarly, geographically isolated connections such as rail-rail 
crossings and common control of bridges will warrant exercise of 
jurisdiction only with regard to the safety of operations at those 
locations. However, FRA will apply its equipment, track, signal, and 
other regulatory requirements at this location as benchmark levels 
against which safety conditions in waiver applications can be 
tested.

Rapid Transit Connections Not Sufficient To Trigger FRA's Exercise 
of Jurisdiction

    Although FRA could exercise jurisdiction over a rapid transit 
operation based on any connection it has to the general railroad 
system, FRA believes there are certain connections that are too 
minimal to warrant the exercise of its jurisdiction. For example, a 
rapid transit system that has a switch for receiving shipments from 
the general system railroad is not one over which FRA would assert 
jurisdiction. This assumes that the switch is used only for that 
purpose. In that case, any entry onto the rapid transit line by the 
freight railroad would be for a very short distance and solely for 
the purpose of dropping off or picking up cars. In this situation, 
the rapid transit line is in the same situation as any shipper or 
consignee; without this sort of connection, it cannot receive goods 
by rail.
    Mere use of a common right of way in which the conventional 
railroad and rapid transit operation do not share any means of train 
control would not trigger FRA's exercise of jurisdiction. In this 
context, the presence of intrusion detection devices to alert one or 
both carriers to incursions by the other one would not be considered 
a means of common train control. These common rights of way are 
often designed so that the two systems function completely 
independently of each other. However, where transit operations share 
highway-rail grade crossings with conventional railroads, FRA 
expects both systems to observe its rules on grade crossing signals 
that, for example, require prompt reports of warning system 
malfunctions. See 49 CFR part 234. In addition, FRA and FTA will 
coordinate with rapid transit agencies and railroads wherever there 
are concerns about sufficient intrusion detection and related safety 
measures designed to avoid a collision between rapid transit trains 
and conventional equipment.
    Where these very minimal connections exist, and except with 
regard to shared highway-rail grade crossings, FRA will not exercise 
jurisdiction unless and until an emergency situation arises 
involving such a connection, which is a very unlikely event. 
However, if such a system is properly considered a rail fixed 
guideway system, FTA's rules (49 CFR part 659) will apply to it.

Coordination of the FRA and FTA Programs

    FTA's rules on rail fixed guideway systems (49 CFR part 659) 
apply to any such systems or portions thereof not subject to FRA's 
rules. On rapid transit systems that are not sufficiently connected 
to the general railroad system to warrant FRA's exercise of 
jurisdiction (as explained above), FTA's rules will apply 
exclusively. On those rapid transit systems that are connected to 
the general system in such a way as warrant exercise of FRA's 
jurisdiction, only those portions of the rapid transit system that 
entail operations over the lines of the general system will be 
subject to FRA's rules.
    A rapid transit railroad may apply to FRA for a waiver of any 
FRA regulations. See 49 CFR part 211. FRA will seek FTA's views 
whenever a rapid transit operation petitions FRA for a waiver of its 
safety rules. In granting or denying any such waiver, FRA will make 
clear whether its rules do not apply to any segments of the 
operation so that it is clear where FTA's rules do apply.
* * * * *
    Issued in Washington, D.C., on September 30, 1999.
Jolene M. Molitoris,
Federal Railroad Administrator.
[FR Doc. 99-28489 Filed 10-29-99; 8:45 am]
BILLING CODE 4910-06-P