[Federal Register Volume 65, Number 132 (Monday, July 10, 2000)]
[Rules and Regulations]
[Pages 42529-42553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17208]



  Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules 
and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 209 and 211

[FRA Docket No. FRA-1999-5685, Notice No. 7]
RIN 2130-AB33


Statement of Agency Policy Concerning Jurisdiction Over the 
Safety of Railroad Passenger Operations and Waivers Related to Shared 
Use of the Tracks of the General Railroad System by Light Rail and 
Conventional Equipment

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

ACTION: Final rule and policy statement.

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SUMMARY: FRA and the Federal Transit Administration (FTA) have jointly 
developed a policy concerning safety issues related to light rail 
transit operations that share use of the general railroad system track 
with conventional trains. That policy, published elsewhere in today's 
Federal Register, describes how the two agencies will coordinate use of 
their respective safety authorities over shared track operations. FRA 
is issuing its own separate 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 statement 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 general railroad system track.

DATES: This statement of policy is effective July 10, 2000.

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

Introduction

    DOT strongly encourages increased use of railroads to serve the 
nation's passenger transportation needs. Many communities are using or 
planning to use railroad lines on which conventional freight and 
passenger trains operate to move commuters and other passengers in 
``light rail'' vehicles. This development holds great promise for 
enhancing transportation alternatives in metropolitan and suburban 
areas. However, this shared use of conventional rail lines, which are 
within FRA's broad safety jurisdiction, also poses some significant 
safety issues. FTA provides a substantial share of the funding for many 
of these passenger operations, some of which straddle the 
jurisdictional line between FRA's and FTA's statutory safety authority. 
Therefore, FRA and FTA have decided to explain jointly, in a notice 
published elsewhere in today's Federal Register, how they will work to 
ensure that they exercise jurisdiction in a complementary way over 
these shared use operations. In this notice, FRA explains in greater 
detail the extent of its safety jurisdiction and how it will exercise 
that authority in the shared use context. FRA also explains how those 
light rail operations that may desire waivers of certain of FRA's rules 
may go about seeking such waivers.
    This notice does not amend any of FRA's substantive safety rules or 
impose any regulatory burdens not already imposed by those rules. Those 
rules cover a wide range of safety issues such as equipment, track, 
signals, grade crossings, and operating practices. By their own terms, 
they already apply to at least those rail operations, like those 
addressed here, that occur on lines where conventional trains operate. 
Nothing in this statement expands the applicability provisions of those 
rules. The only rules that FRA is amending are its statement of policy 
on safety jurisdiction, found in appendix A to 49 CFR part 209, and 49 
CFR part 211, to which FRA is adding a new appendix containing its 
statement of policy concerning waivers related to shared use of the 
general system. FRA believes it is important to ensure that the 
agency's current thinking on these subjects can be readily located in 
the CFR.
    Although agencies are not required to provide notice and an 
opportunity to comment on interpretive rules and statements of policy, 
FRA did so here to ensure that it had the benefit of the views of 
interested parties in developing its policy. Because of the substantial 
overlap in subject matter between FRA's proposed statement of policy 
(published November 1, 1999, at 64 FR 59046) and the joint FRA/FTA 
statement (published May 25, 1999, at 64 FR 28238), we concluded it 
made sense to have the comment periods on both statements run 
concurrently. Therefore, we extended the original comment period on the 
joint statement to coincide with the comment period on this statement 
(64 FR 58124). Then, based on a request from the major organization 
representing rail commuter and transit operations, we extended the 
comment deadline again, to February 14, 2000. We think this public 
process gave all concerned ample opportunity to develop and convey 
their views, and we have spent a great deal of time reviewing the many 
comments we received.

I. Discussion of Comments

    FRA received nearly 50 responses concerning its proposed statement 
of agency policy, including comments from: state and local governments 
and transportation authorities; transit agencies; transportation 
planners and consultants; citizen groups; a railroad labor union; the 
association representing the interests of conventional railroads; and 
the association representing the interests of the rail transit 
industry. Discussions follow with respect to the primary issues raised 
by the commenters. In light of the comments received, FRA has 
reconsidered some aspects of its proposed policy and has elected to 
adopt certain portions of the policy without substantive change from 
what FRA proposed.
    The commenters addressed many of the important topics discussed in 
FRA's proposal, including the extent and exercise of FRA's 
jurisdiction, shared use of the general railroad system of 
transportation by light rail and conventional rail equipment, shared 
use of railroad rights of way by light rail and conventional rail 
equipment, and the nature of the waiver process involving shared-use 
operations. Several commenters applauded the agencies' efforts to 
clarify how FRA and FTA will exercise their respective authorities and 
provide guidance on how to use FRA's waiver process in this context. 
Many commenters had suggestions on how FRA could improve its expression 
of its policy, and a few simply opposed FRA's exercise of its 
jurisdiction, whether generally over light rail operations on the 
general system or specifically over their own operation. The major 
themes that emerged from FRA's review of the comments are as follows:
     FRA's proposed definitional distinction between ``commuter 
railroad'' and ``rapid transit,'' which involves determining the 
primary purpose of the operation and whether a substantial portion of 
the operation is devoted to moving people within a city's boundaries, 
is viewed by some commenters as improperly based in FRA's statutory 
authority or too vague.

[[Page 42530]]

     FRA should establish an administrative process to resolve 
jurisdictional questions, especially those involving light rail 
projects still in the planning stages.
     The ``proposed restrictions'' (apparently some commenters 
did not realize that FRA's rules already apply to these operations) on 
shared use of the same trackage by light rail and conventional rail 
equipment are unjustified because of added compliance costs and the 
possible discouraging effect on the development and expansion of light 
rail transit service. Certain commenters asked FRA to emulate what they 
understand as the European approach and permit simultaneous joint use 
of the same trackage by light rail and freight trains.
     The shared-use waiver petition process is too burdensome 
to transit system operators.
     FRA needs to explain its regulatory role in cases of a 
light rail transit operation sharing a right-of-way but no trackage 
with a conventional railroad.

FRA Jurisdiction

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

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generic, and bears little or no relation to the underlying safety and 
policy concerns embodied in the statute. SEPTA expressed concern that 
under what it considers FRA's sweeping and somewhat vague definition of 
commuter service, the overwhelming majority of transit operations of 
all types operated by SEPTA (bus, trolley, streetcar, and rapid 
transit) could be viewed as possessing commuter characteristics. SEPTA 
stressed that discerning jurisdiction from whether a transit system's 
primary purpose is transporting commuters to and from work within a 
metropolitan area ignores not only various unrelated characteristics of 
the service, such as type of equipment and frequency of service, but 
also historical and widely held notions regarding the limited scope of 
Federal regulation of transit operations. In response, FRA notes that 
its proposed definitions were designed to give life to the sparse 
statutory language with a very keen sense of Congress' concerns. As 
explained at length in the proposed statement and as is clear from the 
statutory language, Congress specifically intended that FRA not make 
jurisdictional determinations based on the type of rail equipment being 
used but rather on the nature of the operation.
    The Port Authority of New York & New Jersey (PATH) commented that 
FRA is ignoring the plain meaning of words when it states on page 59049 
of the proposal that ``it is the nature and location of the [rapid 
transit] operation, not the nature of the equipment, that determines 
whether FRA has jurisdiction under the safety statutes.'' In this 
regard, PATH argues that FRA is creating an arbitrary distinction 
between ``commuter railroads'' and ``rapid transit operations'' by 
looking to the primary purpose of each type of service. PATH believes 
that since commuter railroads and rapid transit operations both 
transport people, the distinction between a ``commuter railroad'' 
transporting commuters to and from work within a metropolitan area and 
a ``rapid transit operation'' moving people from point to point within 
an urban area has no relevance to the determination of jurisdiction 
under the Federal railroad safety laws. Even assuming that the basis 
for the distinction is legally correct, PATH is concerned that FRA's 
decision as to what constitutes a ``substantial portion'' of an 
operation will be made in an arbitrary manner.
    In response, FRA again notes that it believes that Congress 
intended that the type of equipment used in a rail operation not be a 
jurisdictional factor, and that the word ``railroad'' be read to 
include ``any form of nonhighway ground transportation that runs on 
rails or electromagnetic guideways.'' 49 U.S.C. 20102. That statute 
speaks of commuter ``service'' and rapid transit ``operations,'' not 
the equipment used in either service. Given the vast range of rail 
passenger equipment already in use in this country and available from 
suppliers around the world, basing jurisdictional decisions on the type 
of equipment is an impossible task. There is simply no rational basis 
for drawing clear jurisdictional lines between types of equipment or 
for thinking that Congress intended FRA to do so. More important, if 
equipment were the deciding factor, the equipment outside of FRA's 
jurisdiction could run anywhere at any time, including mixed in with 
conventional freight and passenger operations without regard to the 
attendant safety risks of collisions between equipment of vastly 
different structural strengths, and yet avoid FRA's regulatory program. 
There is no evidence of such an intent in the statute.
    PATH also cites in its comments to the Transportation Research 
Board's (TRB) definition of rapid transit. TRB defines a rapid transit 
system as:

    A transit system that generally serves one urban area, using 
high speed, electrically powered passenger rail cars operating in 
trains in exclusive rights-of-way without grade crossings (Chicago 
is an exception) and with high platforms. The tracks may be in 
underground tunnels, on elevated structures, in open cuts, at 
surface level, or any combination thereof. Some local terms use for 
rail rapid transit are the elevated, the metro, the metropolitan 
railway, the rapid, the subway, the underground.

    PATH did not provide a citation to the TRB document in which this 
definition appears. FRA notes that the definition begins in a circular 
fashion by defining rapid transit as a ``transit system'' without 
explaining what makes a system ``transit.'' Arguably, then, this 
definition merely describes the typical physical characteristics of a 
rail transit system without addressing what operational characteristics 
make it transit. The definition states that such systems generally 
operate in an urban area in ``exclusive rights-of-way without grade 
crossings.'' That is certainly true with regard to most systems FRA 
considers to be urban rapid transit. However, if FRA adopted this 
definition, the vast majority of the light rail systems (including 
those in operation in San Diego, Baltimore, and Salt Lake City) would 
be outside the definition of urban rapid transit (and, therefore, 
outside the sole statutory exception) so that even their street railway 
portions outside of the area of shared use would not be considered 
``rapid transit.'' None of these light rail systems operates in an 
exclusive right-of-way, and they all have grade crossings. FRA's 
rationale for not exercising jurisdiction over their non-shared-use 
segments is that these are, at least in some cases, rapid transit 
systems that would be outside of FRA's jurisdiction but for their 
operation over the general system, and that the portions where use is 
not shared can be effectively regulated under FTA's program. Adoption 
of PATH's preferred definition would point in the direction of FRA's 
assertion of jurisdiction over those entire systems rather than just 
their shared use portions. Moreover, the TRB definition provides no 
help with reading the phrase ``commuter or other short-haul railroad 
passenger service'' in the statute. Under TRB's definition, a system 
would be considered rapid transit based on its physical characteristics 
even if its exclusive business was hauling commuters. Of course, FRA 
believes that Congress has clearly directed the agency to assert 
jurisdiction over commuter operations.
    While we appreciate PATH's being the only commenter to offer an 
alternative to FRA's definitions, we find PATH's suggestion 
inappropriate for use in this context. FRA has struggled to develop 
definitions of these terms that embody what we believe was the intent 
of Congress. We think that Congress flatly wanted FRA to have and 
exercise jurisdiction over all commuter operations and to not have or 
exercise jurisdiction over urban railroad transit operations that stand 
apart from the general rail system. We doubt that Congress considered 
how difficult it may be to draw the line where systems have 
characteristics of both types of operations. We have based our 
definitions, as best we could, on the plain meaning and legislative 
history of the statutory terms as used in the railroad safety statutes. 
Also, in a non-safety context, Congress has listed certain specific 
rail systems as commuter authorities in the Northeast Rail Service Act 
of 1981 (``NERSA''), Pub. L. No. 97-35, 45 U.S.C. 1104(3).\3\ In 
subsequently defining ``railroad'' in the safety statutes, Congress 
clearly intended to include ``commuter service.'' 49 U.S.C. 20102. We 
think the

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1981 statute is a useful guide as to Congress' concept of commuter 
service, at least with regard to the listed systems. The same 
committees of the same Congress produced both NERSA in 1981 and the 
1982 safety legislation and used very similar terminology to refer to 
commuter operations, and the legislative history of the 1982 safety 
amendments expressly acknowledges what was then the recent transition 
of some commuter service to new commuter authorities, which NERSA had 
authorized. We see no reason to conclude that Congress intended that 
the particular systems it identified as commuter operations in 1981 be 
considered anything but commuter operations under the safety statutes. 
Therefore, we have amended our definition of commuter operations to 
include, at a minimum, the systems Congress listed in 1981. Of course, 
we recognize that the listed authorities could undertake new operations 
that differ substantially from those existing at the time of NERSA, and 
that the statute would not provide guidance with respect to such new 
and different operations.
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    \3\ The statute provides that ``commuter authority'' includes 
the Metropolitan Transportation Authority, the Connecticut 
Department of Transportation, the Maryland Department of 
Transportation, the Southeastern Pennsylvania Transportation 
Authority, the New Jersey Transit Corporation, the Massachusetts Bay 
Transportation Authority, and the Port Authority Trans-Hudson 
Corporation.
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    We are also revising the definitions of ``commuter railroad'' and 
``urban rapid transit'' to remove as a consideration whether ``a 
substantial portion'' of a system's operations is devoted to moving 
people from station to station within a city, and to focus instead on 
whether such service is a ``primary function'' of the system or ``an 
incidental function'' of its service. The ``substantial portion'' 
language suggested that there could be some numerical threshold of 
intra-urban service that could provide a bright line. Unfortunately, 
FRA is not aware of any such quantitative bright line, and must instead 
focus in a more qualitative way on how a system functions and whether 
such intra-urban service is truly a primary or incidental function of a 
system.
    Although none of the commenters offered an effective alternative to 
the definitions we had proposed, they did give us several factors to 
consider and articulated a strong desire for greater clarity on the 
commuter/rapid transit distinctions. Toward that end, we have refined 
the definitions of those terms by noting which types of service are 
presumptively commuter or rapid transit and what criteria to apply in 
determining the proper characterization of a system that falls outside 
of the presumptions. Under the final policy, FRA's jurisdictional 
determinations will begin with two basic presumptions. First, if there 
is a statutory determination (such as NERSA) that Congress considers a 
particular service to be commuter rail, FRA will respect that 
determination and consider the service to be a commuter railroad. 
Second, a system to which the first presumption does not apply will be 
presumed to be an urban rapid transit system if it is a subway or 
elevated operation with its own track system on which no other railroad 
may operate, has no highway-rail crossings at grade, operates within an 
urban area, and moves passengers within the urban area as one of its 
major functions.
    Where neither of the two presumptions applies, FRA will look at 
each system on a case-by-case basis and apply the following criteria:

Indicators of urban rapid transit:

     Serves an urban area and may also serve its suburbs.
     Moving passengers from station to station within the urban 
boundaries is a major function of the system and there are multiple 
station stops within the city for that purpose.
     The system provides frequent train service even outside 
the morning and evening peak periods.

Indicators of a commuter railroad:

     Serves an urban area, its suburbs, and more distant 
outlying communities in the greater metropolitan area.
     The system's primary function is moving passengers back 
and forth between their places of employment in the city and their 
homes within the greater metropolitan area, and moving passengers from 
station to station within the immediate urban area is, at most, an 
incidental function.
     The vast bulk of the system's trains are operated in the 
morning and evening peak periods with few trains at other hours.
    As several commenters recommended, this more refined analysis looks 
at factors such as the system's geographical reach within a 
metropolitan area and the frequency of service. The presumptions also 
resolve many issues without the need for further analysis.
Process for Resolving Jurisdictional Questions
    Several commenters suggested that, in addition to setting forth 
meaningful criteria for determining the scope of its jurisdiction over 
light rail in shared corridors, the policy statement should also 
describe what administrative options are available within FRA for 
resolving jurisdictional questions. The American Public Transportation 
Association (APTA) urged FRA to adopt a pre-waiver review process to 
discuss FRA's jurisdiction. Consistent with APTA, the NSWG suggested 
that FRA establish an informal process for transit systems to secure 
jurisdictional determinations without submitting to FRA jurisdiction. 
The NSWG stated that FRA could offer transit systems the option to use 
a bifurcated approach for the submission of waiver petitions. In part 
one, the transit system could offer facts and legal arguments 
sufficient to permit FRA to render a threshold jurisdictional 
determination, and in part two (assuming that FRA has jurisdiction) the 
transit system would submit its comprehensive waiver petition.
    In response to these comments, FRA stresses that it is always 
willing to meet with transit agency officials at the earliest stages of 
a project to determine if the proposed operation would be subject to 
FRA jurisdiction, and welcomes the opportunity to periodically consult 
with these individuals throughout the entire planning and 
implementation of a project under our jurisdiction. FRA recognizes that 
the equipment choices and right-of-way alignment options are complex 
issues, the resolution of which may be aided if a transit agency 
receives early guidance from the agency concerning FRA jurisdiction. 
Accordingly, FRA has amended its policy to include an informal method 
for obtaining jurisdictional determinations from FRA early in the 
process before preparation of a waiver application. The mere submission 
of a request for FRA's views on whether it has jurisdiction over an 
entity would not constitute submission to FRA's jurisdiction or 
acquiescence in FRA's eventual determination. Of course, FRA would have 
to base such determinations on the facts presented to it, and any 
significant changes in the system after its determination could require 
revisiting that ruling.
Jurisdiction Over Particular Operations
    Four commenters directed their comments to the issue of whether FRA 
has statutory jurisdiction over their particular rail operations.
    MTA considers the proposal to be an unwarranted and improper 
exercise of FRA's jurisdiction as it relates to MTA's light rail 
system. MTA states that it will use every available safety measure to 
ensure the safety of its system, and will proceed with its dialogue 
with FRA, but continues to believe that FRA's attempt to exercise 
jurisdiction over its light rail system is inappropriate under existing 
law. MTA argues that it is not the mere connection to the general 
system through which FRA's jurisdictional

[[Page 42533]]

authority flows, but rather the nature of the operational connection 
between two systems. In this regard, MTA believes that the minimal 
intrusion caused by the operation of one freight train every other 
night on its central light rail line does not abrogate the statutory 
exclusion for rail rapid transit systems set forth in 49 U.S.C. 20101.
    PATH indicates in its comments that it is concerned with only the 
issue of jurisdiction, and not with the policy statement's discussion 
of shared facilities, since the PATH system does not share track with 
any other operator. PATH stresses that since, in its view, it shares 
virtually no common characteristics with the Long Island Railroad, 
MARC, or VRE, it should not be included by FRA as an example of a 
``commuter railroad.'' PATH concludes that, when applied to its 
operation, FRA's proposed definition of a transit system as an 
operation that devotes a substantial portion of its operations to 
moving people from point to point within an urban area would clearly 
result in the classification of PATH as a rapid transit system. At the 
same time, PATH argues that FRA has no reasonable basis for looking at 
the characteristics of the passengers who ride PATH rather than the 
characteristics of the equipment to determine if it has jurisdiction. 
PATH's comments do not mention that a federal appellate court ruled 
that FRA had not abused its discretion when, in 1996, it determined 
that PATH is a railroad within its jurisdiction. Port Authority Trans-
Hudson Corp. v. Federal Railroad Administration., No. 97-1103 (D.C. 
Cir., Dec. 15, 1997), cert. denied, 525 U.S. 818 (1998).
    The Port Authority Transit Corporation (PATCO) in Philadelphia, 
Pennsylvania states that because it is an intra-urban mass transit 
system not connected to the general railroad system, it is subject only 
to FTA's authority. Since PATCO is regulated by FTA, and the respective 
jurisdictions of FTA and FRA are mutually exclusive, PATCO requests 
that the final joint policy statement make clear that it is not subject 
to FRA's regulations.
    SEPTA devotes much of its comments to arguing that its planned 
passenger operation between Philadelphia and Reading, Pennsylvania, a 
distance of 62 miles, should not be subject to FRA's jurisdiction. One 
alternative being considered for that line is a light rail operation 
sharing a corridor with a freight line. SEPTA contends that, despite 
being primarily a commuter line, this operation would be outside of 
FRA's jurisdiction because it would serve other transit needs, have 
separate trackage in the freight corridor, and use light rail 
equipment.
    While FRA is including a summary in this document of each 
operation's assertions for public informational purposes, this policy 
statement is not the appropriate vehicle for resolving the 
jurisdictional issues involving the peculiar facts of particular 
operations. Instead, FRA has addressed or will address each operation's 
concerns in the course of separate meetings and/or written 
correspondence.
Effect of FRA Jurisdiction on the Applicability of Other Railroad Laws
    Two commenters, APTA and the NSWG, requested that FRA add language 
to the policy statement to clarify that if a rail operation is subject 
to FRA jurisdiction for rail safety purposes, it does not necessarily 
mean that the operation is also covered by other Federal railroad 
statutes such as the Federal Employers' Liability Act, the Railway 
Labor Act, and the Railroad Retirement Act. Likewise, the commenters 
argue that being within the scope of those other railroad laws should 
have no relevance to FRA in determining whether a railroad system is 
deemed a railroad for rail safety purposes. FRA agrees with the points 
made. These other Federal statutes have their own definitions, 
purposes, and legislative histories. FRA does not consult them in 
making jurisdictional determinations under the safety statutes. 
Moreover, FRA does not intend that its jurisdictional determinations 
have any bearing on whether a rail operation is a ``railroad'' for 
purposes of those other statutes. While there are some specific links 
in the safety statutes to some of those other laws (e.g., the rail 
safety statutes incorporate the dispute resolution process of the 
Railway Labor Act for handling certain disputes related to safety-based 
discrimination against employees, 49 U.S.C 20109(c), and the Federal 
Employers' Liability Act contains a provision precluding a finding of 
contributory negligence against any employee where the railroad's 
violation of any safety statute contributed to the employee's injury or 
death, 45 U.S.C. 53, we do not believe that those links indicate a 
Congressional intent that FRA's safety jurisdiction would be affected 
by the reach of those statutes.

Shared Use and Temporal Separation.

Simultaneous Joint Use Of Track by Light Rail and Conventional 
Equipment
    In the discussion of ``Waiver Petitions Concerning Shared Use of 
the General System by Light Rail and Other Railroads,'' in which FRA 
explained the general factors that should be addressed in a Petition 
for Approval of Shared Use, FRA indicated that light rail operators 
intending to share trackage on the general railroad system with 
conventional rail equipment must either comply with FRA's safety rules 
or obtain a waiver of appropriate rules. 64 FR at 59050. FRA explained 
that a collision between an occupied light rail transit vehicle and 
conventional freight or passenger equipment would have catastrophic 
consequences because the light rail vehicles are not designed to 
withstand such a collision. 64 FR 59049. FRA stated that the surest way 
to ensure that such collisions do not occur is to strictly segregate 
light rail and conventional operations by time of day, and that the 
agency is likely to grant waivers of many of its rules where complete 
temporal separation between the incompatible equipment is demonstrated. 
64 FR 59055. Some commenters welcomed FRA's preference for temporal 
separation, while others saw it as too restrictive and not sufficiently 
open to the possibility that light rail and conventional equipment can 
operate safely and simultaneously on the same track.
    Among the comments received, APTA stressed that the final policy 
statement should reflect the principles of promoting more livable 
communities and taking advantage of underutilized freight corridors to 
provide service that would otherwise be too expensive, and noted that 
the expansion of rail passenger transportation would benefit America's 
communities in terms of reduced highway congestion, reduced pollution, 
short commuting times, and increased economic opportunities. APTA 
requested that the shared-use waiver process be flexible, expeditious, 
and recognize already existing state safety oversight procedures in 
order to permit local authorities the maximum flexibility in designing, 
building, and operating new light rail systems.
    APTA believes that a broad approach examining relative risk is 
vital to developing an appropriate long-term policy promoting light 
rail. In addition to assessing the safety impact of diverting traffic 
to highways, FRA and FTA should explore European system safety 
techniques which permit operation of differing equipment designs on the 
same track based on crash avoidance philosophies (e.g., advanced train 
control systems). FRA should be open to new approaches for shared-use 
operations, e.g., fail safe separation, train orders and track 
warrants, positive train control, and operating practices and 
technological

[[Page 42534]]

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

[[Page 42535]]

    FRA has carefully considered all of the comments. However, many of 
them are based on what FRA believes are two critical misunderstandings, 
i.e., the view that FRA's policy will somehow impose new compliance 
burdens, and the notion that FRA has ruled out simultaneous use of 
track by light rail and conventional equipment under all circumstances.
    Several commenters seem not to understand that FRA's policy 
statement imposes no new burdens, but rather suggests how relief from 
existing regulatory burdens might be obtained by waiver. Wholly 
independent of this policy, FRA's rules apply to these systems today 
and would continue to apply whether or not FRA issued a statement of 
policy on shared use. If waivers are not obtained, those rules apply as 
they are written. For example, FRA's passenger safety standards (49 CFR 
part 238) alone would preclude all light rail operations on the general 
system, since light rail vehicles do not meet the structural and other 
standards found in that rule. (Of course, the rule has a grandfathering 
provision that, under certain conditions, makes one basic structural 
requirement inapplicable to certain equipment already in use in 1999.) 
Therefore, it is very much in the commenters' interest for FRA to 
provide guidance on how its waiver process will work in this context 
and how best to address the issues of concern to FRA. Although the 
waiver process will entail some cost to the light rail operation, that 
cost is occasioned by FRA's existing waiver rules (49 CFR part 211) 
rather than this statement, and the alternative is the full cost of 
compliance with existing substantive rules.
    Various commenters who oppose the concept of temporal separation 
contend that FRA fails to recognize the sophisticated operational and 
technological safeguards that can eliminate the risks associated with 
shared use of the general railroad system, particularly for operations 
involving simultaneous joint use. These commenters generally maintain 
that FRA is preoccupied with crashworthiness of the vehicles and not 
sufficiently focused on crash avoidance.
    In response, FRA points out that temporal separation is actually a 
crash avoidance measure, and the one most likely to prove fully 
successful. FRA's discussion of the disparate crashworthiness features 
of light rail and conventional equipment was intended to highlight the 
likely severity of a collision between those types of vehicles. Because 
safety risk is a function of the likely severity of an accident and the 
likelihood of its occurrence, the greater the predictable severity the 
more interested FRA is in reducing the likelihood of the occurrence. 
FRA has made clear that it has not ruled out the possibility that 
methods of collision avoidance such as sophisticated train control 
systems may provide an acceptable level of safety. 64 FR 59055. 
However, FRA has stated that a petitioner seeking to use these types of 
equipment on the same track at the same time will face a steep burden 
in demonstrating that the likelihood of such a catastrophic accident is 
remote.
    FRA would expect the waiver applicant to demonstrate that the risk 
of such an event is extremely remote by discussing the types of 
extraordinary safety measures that would be taken to adequately reduce 
the likelihood of a catastrophic collision between the two types of 
equipment to an acceptable level. The waiver application would also 
need to include a quantitative risk assessment concerning the risk of a 
collision under the applicant's proposed operating scenario and an 
engineering analysis of the light rail equipment's resistance to damage 
in various collision scenarios. 64 FR 59051. FRA recognizes that a 100 
percent risk reduction cannot be assigned to any individual risk 
countermeasure, and that there are risks associated with the adoption 
of any new technology.\4\ However, because simultaneous joint use of 
trackage by structurally incompatible equipment inherently involves 
significant risk of severe consequences, FRA believes it is simply 
being reasonable to insist that the proponent of such an operation meet 
a steep burden of demonstrating a corresponding risk reduction through 
the use of highly competent methods of collision avoidance.
---------------------------------------------------------------------------

    \4\ These points are made in a report to FRA from its Railroad 
Safety Advisory Committee. See page 47 of ``Report of the Railroad 
Safety Advisory Committee to the Federal Railroad Administrator--
Implementation of Positive Train Control Systems,'' dated September 
8, 1999.
---------------------------------------------------------------------------

European Experience With Simultaneous Joint Use of the Same Trackage
    As discussed above, many of the commenters urge FRA to study the 
success of mixed operations in parts of Europe, where passenger and 
freight vehicles of different strengths operate on the same track at 
the same time. The commenters stress that joint use of tracks by 
transit and standard railroad vehicles has proved to be an important 
innovation in Europe that should be permitted here.
    In response, FRA observes that the agency is very familiar with the 
European systems. FRA has studied European high speed passenger systems 
in detail for many years, and more recently has directly observed the 
mixed use operations in places such as Karlsruhe, Germany. If some of 
those systems were replicated in the United States in every detail, FRA 
would very likely approve them by rule or waiver. However, FRA is not 
aware of any current or proposed light rail system in the United States 
that is fully comparable to the European systems the commenters offer 
as a model.
    The successful European experience with mixed light rail and 
freight traffic is best exemplified by the system in Karlsruhe, 
Germany. FRA and FTA officials (including FRA safety experts) have 
personally observed that operation twice in the last several months, 
most recently as part of a joint visit in April 2000. In Karlsruhe, the 
light rail system shares some trackage with freight and intercity 
passenger trains, and the different operations are not segregated by 
time of day. However, unlike many candidate lines for new light rail 
starts in the United States, the predominant traffic in Karlsruhe is 
scheduled passenger trains, rather than a mix of local and through 
freight trains. More important, the Karlsruhe system involves certain 
features critical to its safety: all trains that operate in the shared 
use portions must be equipped with automatic train control; the light 
rail vehicles have very high braking capacities (as compared to light 
rail vehicles used in the United States); all trains use a common 
communications system that permits radio communication with the control 
center and all types of other trains; all trains operate under the same 
operating rules; train crews are part of an integrated work force that 
is trained to operate all types of vehicles in use on the line and in 
fact operates different vehicles during the average work week; all 
dispatching is done centrally for all trains; all train crews are 
limited to less than 40 hours of work per week; the different types of 
rail equipment that operate in the shared use area differ less in mass 
and structural strength than do conventional and light rail vehicles in 
the United States; and grade crossings, which are not as common as in 
the United States, are protected by four-quadrant gates.
    The combination of all of these features has produced what appears 
to be a very safe, integrated system in Karlsruhe. The commenters who 
advocate that system as a model for shared, simultaneous use of track 
in this country imply that FRA is unwilling to permit such innovation 
here. That is not correct. Instead, FRA is unwilling to permit 
simultaneous use of track that

[[Page 42536]]

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

[[Page 42537]]

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

The FRA Waiver Process

    FRA may grant a waiver of any rule or order only ``if the waiver is 
in the public interest and consistent with railroad safety.'' 49 U.S.C. 
20103(d). The waiver petitions are reviewed by FRA's Railroad Safety 
Board (Safety Board) under the regulatory provisions of 49 CFR part 
211.
    Each waiver petition is considered on its own merits, and the 
applicant is not limited as to format or content, provided that the 
minimum procedural requirements of 49 CFR part 211 are satisfied. The 
waiver process provides the applicant with wide latitude in discussing 
each of the specific safety issues involved in the specific shared use 
operation, and the opportunity to help shape the conditions that FRA 
will deem necessary to assure the safety of the operation. Since FRA's 
procedural rules only give a general description of what any waiver 
petition should contain (see 49 CFR 211.9), and are not specifically 
tailored to situations involving light rail operations over the general 
system, the proposed policy statement provided detailed suggestions and 
guidance as to what general factors each petition should seek to 
address (these factors also appear in the final policy statement).
Use of the Term ``Waiver'' and Alternatives to Waivers
    APTA commented that its member organizations are concerned about 
the negative perception that the term ``waiver'' creates at the local 
level, and requests that FRA instead describe the waiver process as 
``authorized use'' subject to FRA review and approval.

[[Page 42538]]

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

[[Page 42539]]

final policy statement), most light rail operations planning to operate 
on the general railroad system will also have segments off the general 
system which will be subject to FTA's rules for rail fixed guideway 
systems (49 CFR part 659). See 64 FR at 59051. To the extent that a 
waiver applicant can demonstrate that compliance with a state safety 
oversight program will satisfy FRA's safety concerns, this will likely 
expedite FRA's processing of the petition.
Whether All Affected Railroads Must Jointly File the Waiver Petition
    Several commenters objected to FRA's suggestion that the light rail 
operator ``and all other affected railroads jointly file'' a petition 
for approval of shared use. 64 FR 59050. In particular, APTA argues 
that while the freight operator should be made aware of the waiver 
application, with agreements reached to ensure a safe operating 
environment, it is unnecessary to explicitly require the freight 
operator in all cases to approve the transit agency's application. 
Moreover, APTA is concerned that such a requirement may give the 
freight operator unfair leverage in negotiations with the transit 
agency over shared-use operations on the general system. The NSWG 
recommended adopting a procedure whereby the waiver applicant would 
have the burden to demonstrate that all users had a clear understanding 
of how operations will be conducted and how temporal separation would 
be strictly maintained.
    Based upon careful consideration of the comments, FRA is revising 
the final policy statement to indicate that, while the conventional 
railroad(s) operating on a line will always be an interested party 
concerning a light rail operator's waiver petition for shared use of 
the general system, the conventional operator need not be a joint 
filer. FRA's rules on waiver petitions (49 CFR 211.7 and 211.9) do not 
require joint filing, and FRA's suggestion of joint filing was not 
intended to alter the rules. However, while FRA will not require joint 
filing as a prerequisite for evaluating the light rail operator's 
application, since FRA expects the transit applicant to thoroughly 
describe the alternative safety measures to be employed in lieu of each 
rule for which a waiver is sought, the input of the freight (or other 
conventional) operator is imperative. Accordingly, FRA anticipates that 
before a light rail operator submits a shared-use petition, the transit 
agency will effectively communicate with the affected freight or other 
railroad to coordinate interaction of the two operations on the same 
trackage, including what the respective hours of operation will be for 
each type of equipment. If the light rail and conventional operations 
will occur only under time-separated conditions, FRA will expect all of 
the affected railroads to jointly determine what means of protection 
will ensure that the different types of equipment will not operate 
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 will be no overlap that could result in a collision. Unless a 
petition thoroughly explains how the light rail operation will interact 
with conventional operations on the line and documents the agreement of 
those other railroads to any necessary safety arrangements to 
coordinate their operations with the light rail operation, FRA is 
likely to conclude that the petition does not contain ``sufficient 
information to support the action sought.'' 49 CFR 211.9. As a 
condition of any waiver, the conventional railroad must subscribe to 
these responsibilities that are relevant to its operations in 
connection with the shared use arrangement. Accordingly, FRA's policy 
statement suggests that the petition contain documentation of the 
precise terms of the agreement between the light rail operator and the 
conventional railroad concerning any actions that the conventional 
railroad must take to ensure effective implementation of alternative 
safety measures. Of course, FRA will not grant a waiver to a light rail 
operator that is based on conditions concerning another railroad's 
operations without providing notice and an opportunity for a hearing, 
which will permit that other railroad to fully explain its views.
    However, where the ``other affected railroads'' are legally 
responsible for compliance with the regulation sought to be waived by 
the light rail operator, these other railroads must also petition for 
relief, whether jointly with the light rail operator or separately. For 
example, if a light rail operator is seeking a waiver of the Signal 
System Reporting Requirements of 49 CFR part 233 but the conventional 
railroad is currently responsible for maintaining some of the signal 
systems, both parties have compliance obligations concerning the light 
rail operation. In some areas, the freight operator will essentially be 
relieved of certain of its obligations if the light rail operator 
receives a waiver. For example, FRA's rule on passenger equipment 
generally makes a railroad liable for permitting the use or haul on its 
line of non-complying equipment. 49 CFR 238.9. If the light rail 
operator obtains a waiver for its equipment, that equipment will no 
longer be considered not in compliance. However, the freight operator 
may want to participate in the waiver process from the beginning.
Duration of the Waiver
    The NSWG urged FRA to grant waivers for shared-use operations in 
perpetuity, subject to FRA's authority to modify or withdraw a waiver 
if the conditions imposed are not met or if unanticipated safety issues 
arise that merit such action. In this regard, the NSWG stated that 
transit systems likely to seek temporal separation waivers will seek 
them in connection with rail projects funded in part with Federal funds 
administered by FTA. Since FTA will require these transit systems to 
demonstrate that they will have control of, and the ability to use, all 
of the assets (e.g., the rail right-of-way and passenger vehicles) 
acquired with the Federal funds for the 20 to 40 year useful life of 
the assets, a five year limitation on the duration of a waiver is, in 
NSWG's view, inadequate.
    FRA is mindful of the transit agency's need for a degree of long-
term certainty about the safety-related conditions that may apply to 
its operation, and recognizes that a rail project represents a long 
term commitment of a transit agency's resources. However, FRA cannot 
accept NSWG's recommendation that the Safety Board issue waivers for 
indefinite periods of time, since this would hinder FRA's opportunity 
to determine if circumstances have changed or if issues have arisen 
that were not contemplated when the relief was last granted or renewed. 
FRA notes that the agency typically issues waivers of limited duration 
and has not adopted a unique policy here. FRA intends to grant waivers 
for periods of sufficient length (e.g., five years) to permit long-term 
planning. Moreover, FTA is well aware of the reasons for FRA's 
reluctance to grant permanent waivers, and will not consider the need 
to renew a safety waiver an indication that the transit system lacks 
control of, and the ability to use, its assets for their useful life.
    While FRA retains the authority to modify or withdraw a waiver in 
the interest of rail safety, such action is generally limited to 
instances when FRA uncovers a substantial change in the conditions 
under which the waiver was granted or determines that a significant 
unforeseen safety issue exists. FRA will ordinarily become aware of 
such developments during the term of the waiver through its 
coordination with the state safety agency that oversees the subjects on 
which FRA has granted waivers, and

[[Page 42540]]

will work with the waiver recipient to sufficiently address our safety 
concerns. However, the renewal process will provide a periodic 
opportunity to determine if such important changes in circumstances 
have occurred. FRA does not view a waiver as a temporary measure that 
will jeopardize a rail project's continued operation once the waiver 
expires. Rather, FRA expects to routinely renew waivers where the 
conditions underlying the waiver have not changed substantially and no 
major unforeseen safety issues have arisen, and where FTA and the state 
safety oversight agency affirm that the operation is in compliance with 
FTA requirements.
The Role of FTA in the Waiver Process
    Four of the five commenters on this issue objected to the fact that 
FRA will not permit FTA's liaison to FRA's Safety Board to vote. The 
consensus of the commenters was that the proposed approach will not 
effectively ensure that FTA's knowledge and insights with respect to 
transit operations, financial issues, and state safety oversight are 
adequately considered by the Safety Board. The commenters believe that 
the two DOT agencies have different perspectives on non-safety related 
topics, and the best decisionmaking between two parties with diverse 
interests occurs with shared equal authority. However, the fifth 
commenter, San Diego Trolley, stated that while it would be 
inappropriate to allow FTA to participate in voting on waiver 
applications, FTA's representative should have more direct authority in 
the decisionmaking process.
    Under delegation from the Secretary of Transportation, see 49 CFR 
1.49, FRA administers the Federal railroad safety statutes, and all 
waivers requested from FRA's Safety Board involve exclusively FRA's 
regulations. FTA is not charged with administering the Federal railroad 
safety laws. Rather, FTA is responsible for: developing comprehensive 
and coordinated mass transportation systems to serve metropolitan and 
other urban areas; administering urban mass transportation programs, 
including its rule on the safety of rail fixed guideway systems; and 
assuring appropriate liaison and coordination with other governmental 
organizations with respect to the foregoing. Since FTA's statutory 
authority does not include administration of the Federal railroad 
safety laws, it would be inappropriate and outside the scope of FTA's 
legal authority if the FTA liaison to the Safety Board can veto the 
waiver conditions that FRA elects to impose on an applicant. Similarly, 
while FRA provides its rail safety expertise to FTA on safety issues 
inherent in FTA's review of rail grant proposals, FRA cannot vote on 
FTA's funding decisions, and it would not be appropriate for FRA to do 
so. FRA may have contributed to some confusion on this issue by using 
the description ``non-voting'' without explaining how the Safety Board 
works. FRA's Safety Board is not a collegial body like an independent 
agency; the chairperson of the board is the sole deciding official and 
acts by delegation from the Administrator. Other board members, all of 
whom are FRA staff, participate in the deliberations and offer advice 
and counsel, but do not vote. Under FRA's arrangement with FTA, the FTA 
representative will have a voice in deliberations equal to that of FRA 
staff.
    In response to concerns from the commenters that without an 
official vote FTA's role with the Safety Board be ineffective, FRA 
stresses that the reason it is including an FTA official as an invited 
participant in the consideration of Petitions for Approval of Shared 
Use is to receive FTA's, and through it, the transit industry's 
perspective on the many unique and complex issues involving light rail 
operations. Since FRA recognizes that its expertise is in matters 
related to railroad safety, the agency wants FTA's expert advice on the 
facts presented in the petition concerning the project's special 
characteristics and operating considerations prior to selecting 
appropriate waiver conditions. Under FRA's safety partnership with FTA, 
not only will FTA have the opportunity to shape the safety requirements 
that will apply to light rail operations on the general system, but FTA 
will gain a fuller appreciation of the rail safety issues involved in 
each shared-use operation considered by the Safety Board.
Examples of Two Petitions for Approval of Shared Use Already Granted by 
FRA
    Before FRA's proposed policy statement was published in the Federal 
Register last November, the agency received two petitions for approval 
of shared use, both seeking waivers of compliance with certain 
requirements of the Federal railroad safety regulations and exemption 
of certain statutory provisions in connection with planned light rail 
systems. Transit agencies planning to request similar waivers and/or 
exemptions are encouraged to review the electronic dockets for these 
petitions as helpful examples in preparing their own submissions. The 
first petition was submitted by NJT on July 13, 1999, and was docketed 
as FRA Waiver Petition No. FRA-1999-6135. See 64 FR 45996 (August 23, 
1999). The second petition was submitted by the Utah Transit Authority 
(UTA) on August 19, 1999, and was docketed as FRA Waiver Petition No. 
FRA-1999-6253. See 64 FR 53435 (October 1, 1999). Each docket includes 
a copy of the petition itself, the letter granting the petition, and a 
discussion of the waiver conditions. While these petitions may serve as 
useful examples for future waiver applicants to follow, FRA also 
expects transit agencies to review the guidance included in this final 
policy statement in conjunction with the regulatory requirements 
contained in 49 CFR part 211. FRA granted each waiver for a period of 
five years, and conditioned each waiver on the operator's submission 
for FRA approval of procedures for ensuring temporal separation. The 
NJT waiver was an example of FRA's willingness to grant a waiver early 
in the planning process, subject to conditions such as subsequent 
submission of evidence concerning state approval of the system safety 
plan.

Operations Within Shared Rights-of-Way

    FRA received 11 comments on the issue of FRA's jurisdiction over a 
light rail transit operation sharing a right-of-way but no trackage 
with a conventional railroad. In general, the commenters request 
clarification in the final policy statements as to how FRA and FTA 
intend to coordinate their programs with respect to a rail transit 
system that operates within the same right-of-way as conventional 
equipment, without shared trackage. Many of the commenters stress that 
any standards adopted by FRA for sharing the right-of-way need to be as 
clear and explicit as possible to assist the transit systems in 
evaluating potential light rail projects and planning those deemed 
desirable.
    SEPTA believes that it is unnecessary for FRA to assert 
jurisdiction over light rail operations running parallel to freight 
service because transit agency systems are covered under existing state 
safety oversight program plans. SEPTA states that the proposed joint 
policy statement is unclear as to the limits of FRA's jurisdiction, 
other than to indicate that FRA's safety rules cover points of 
connection where a light rail operation crosses the tracks of a freight 
railroad at grade. In this regard, SEPTA seeks guidance as to what 
safety issues FRA believes will exist where light rail operations are 
conducted on separate tracks within a shared right-of-way. The 
commenter also notes that the policy statement doesn't address the 
issue of

[[Page 42541]]

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

Miscellaneous Comments

Employee Qualifications
    The BLE, the only commenter to address this issue, limited its 
comments to waivers of 49 CFR part 240, because of an overriding 
concern for the manner in which light rail vehicle operators are

[[Page 42542]]

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

[[Page 42543]]

as street railways and trolleys. 64 FR at 59049. FRA also stated that 
``heavy rail'' generally refers to trains operating on rails that are 
in separate rights-of-way from which all other vehicular traffic is 
excluded, and observed that in transit terms, heavy rail is also known 
as ``rapid rail,'' ``subway,'' or ``elevated railway.'' FRA noted that 
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. FRA advised 
that although this equipment is sometimes referred to as ``heavy'' 
rail, it would use the term ``conventional'' to avoid confusion between 
the different ways ``heavy'' is used in the transit and general 
railroad communities.

II. Changes From the Proposed Statement of Policy Concerning the 
Extent and Exercise of FRA'S Safety Jurisdiction Over Passenger 
Operations

    To ensure that the regulated community is fully aware of how FRA 
views the extent of its jurisdiction over passenger operations and how 
it intends to exercise that jurisdiction, FRA is amending the 
discussion of its jurisdiction in its Statement of Agency Policy 
Concerning Enforcement of the Federal Railroad Safety Laws, which is 
found in at appendix A of 49 CFR part 209. In its proposed policy, FRA 
included an extensive discussion of its legal authority over railroad 
safety, including the extensive legislative history of the term 
``railroad'' as used in the Federal railroad safety statutes. 64 FR 
59047-59049. FRA does not repeat that discussion here, but incorporates 
it by reference as the basis for its policy on the extent and exercise 
of its jurisdiction over passenger operations.
    Based on comments received, FRA is making some changes to its 
proposed policy. The definition of ``commuter railroad'' is being 
amended to make clear that certain specific operations named as 
commuter authorities by statute are considered commuter railroads under 
the safety laws regardless of how the criteria that distinguish other 
railroads as ``commuter'' in nature may apply to them. FRA believes 
this change is necessary in order to ensure that railroads that 
Congress considers commuter railroads are within FRA's exercise of its 
jurisdiction without the need for extensive debate about the nature of 
their operations.
    For reasons explained in the discussion of comments, we are also 
revising the definitions of ``commuter railroad'' and ``urban rapid 
transit'' to remove as a consideration whether ``a substantial 
portion'' of a system's operations is devoted to moving people from 
station to station within a city, and to focus instead on whether such 
service is a ``primary function'' of the system or ``an incidental 
function'' of its service.
    We are further revising the jurisdictional statement to facilitate 
determinations about whether a system is a commuter railroad or urban 
rapid transit system. We have included two presumptions, one that 
adopts statutory determinations of a system's characterization, and the 
other that presumes a system is rapid transit if it meets a certain 
description. Where neither presumption applies, we have provided a list 
of criteria that need to be considered in making the commuter/rapid 
transit determination.
    FRA is also revising its statement of policy to make clear that 
highway-rail grade crossings used by both a conventional railroad and a 
light rail operation provide a sufficient connection to warrant a 
limited exercise of FRA's jurisdiction over the light rail operator. In 
the proposal, that point was made, but under a heading concerning 
connections not sufficient to trigger the exercise of jurisdiction. The 
final policy statement places the discussion more appropriately and 
slightly expands it.

III. Changes to Proposed Policy Concerning Petitions for Approval 
of Shared Use of the General System by Light Rail and Other 
Railroads

    Much of FRA's proposed statement of policy concerned how the agency 
intended to address waiver requests concerning shared use of the 
general system by light rail and conventional operations. FRA provided 
guidance on how interested parties could file such waiver requests, 
what they should address, and what waivers are likely under particular 
circumstances. FRA has amended its policy to reflect various comments 
received on the proposal. Moreover, FRA has concluded that this policy, 
like its policy on the extent and exercise of its safety jurisdiction, 
should reside in the CFR for easy future reference. Therefore, we are 
adding a new appendix to 49 CFR part 211, which contains FRA's rules of 
practice, including those concerning waivers.
    Several commenters requested that FRA provide a means by which 
those developing light rail systems could obtain a jurisdictional 
determination from FRA without first preparing an entire waiver 
petition. This makes good sense, because an early jurisdictional 
determination could affect planning for a system in significant ways. 
Of course, anyone is always free to request such determinations from 
FRA. The revised policy statement merely reiterates this point, 
recommends where such requests should be submitted, and suggests that 
requesting such determinations may be a useful step to take well before 
filing a waiver petition.
    Another subject of great interest to commenters was whether the 
light rail operator must always get the general system railroad to join 
in any petition for waiver or approval of shared use. Our proposed 
statement included a request that the light rail operator and ``all 
other affected railroads'' file the petition jointly. In the discussion 
of comments, above, we explained why this would be very useful but is 
not required, and pointed out that other affected railroads may need to 
file their own petitions if the planned operations somehow preclude 
their compliance with FRA's rules. Even if they do not need to file a 
petition, of course, all affected railroads will have an opportunity to 
comment and appear at any hearing that is requested on the light rail 
operator's petition. Our final policy statement explains these points.
    Many commenters indicated the need for greater clarity in FRA's 
policy concerning situations where the light rail operator and 
conventional railroad do not share trackage but have operations that 
are otherwise sufficiently connected to warrant a limited exercise of 
FRA's jurisdiction. FRA has included a more thorough discussion of this 
subject to the final policy statement. The statement makes clear that, 
where minimal connections exist in a common right-of-way (even where 
the two operations use their respective tracks simultaneously), the 
light rail operator will be subject to only those safety rules 
pertinent to the connection that exists, and that any waiver request 
should be limited to just those rules.
    The new Appendix A to part 211, therefore, will include a 
discussion of which railroads need to file waiver petitions in shared 
use or shared right-of-way situations, the general factors that should 
be addressed in a Petition for Approval of Shared Use, general 
considerations concerning petitions for waiver where the right-of-way 
is shared but the connections are limited, factors to address in any 
petition concerning specific rules, and the areas where waivers are 
likely in shared use situations (including a chart).

[[Page 42544]]

List of Subjects

49 CFR Part 209

    Railroad safety, Enforcement Procedures.

49 CFR Part 211

    Railroad safety, Rules of Practice.

The Policy Statement

    In consideration of the foregoing, chapter II, subtitle B of title 
49, Code of Federal Regulations is amended as follows:

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.

    Appendix A to 49 CFR part 209 is amended as follows.

Appendix A--Statement of Agency Policy Concerning Enforcement of 
the Federal Railroad Safety Laws

    2. The title of Appendix A is revised to read, as set forth above.

    3. Under the heading ``The Extent and Exercise of FRA's Safety 
Jurisdiction,'' the seventh paragraph (which begins, ``For example, all 
of FRA's regulations'') of the appendix is removed, and the following 
paragraphs are added in its place:

The Extent and Exercise of FRA's Safety Jurisdiction

* * * * *
    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). Some rules exclude 
passenger operations that are not part of the general railroad 
system (such as some tourist railroads) only if they meet the 
definition of ``insular.'' E.g., 49 CFR 225.3(a)(3) (accident 
reporting) and 234.3(c) (grade crossing signal safety). 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.

    4. 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 ``rapid transit operations in an urban 
area that are 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, 
standard gage intercity operations are all considered part of the 
general railroad system, even if not physically connected to other 
portions of the system. Other intercity passenger operations that 
are not standard gage (such as a magnetic levitation system) are 
within FRA's jurisdiction even though not part of the general 
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.
    FRA will presume that an operation is a commuter railroad if 
there is a statutory determination that Congress considers a 
particular service to be commuter rail. For example, in the 
Northeast Rail Service Act of 1981, 45 U.S.C. 1104(3), Congress 
listed specific commuter authorities. If that presumption does not 
apply, and the operation does not meet the description of a system 
that is presumptively urban rapid transit (see below), FRA will 
determine whether a system is commuter or urban rapid transit by 
analyzing all of the system's pertinent facts. FRA is likely to 
consider an operation to be a commuter railroad if:
     The system serves an urban area, its suburbs, and more 
distant outlying communities in the greater metropolitan area,
     The system's primary function is moving passengers back 
and forth between their places of employment in the city and their 
homes within the greater metropolitan area, and moving passengers 
from station to station within the immediate urban area is, at most, 
an incidental function, and

[[Page 42545]]

     The vast bulk of the system's trains are operated in 
the morning and evening peak periods with few trains at other hours.
    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.

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. 20102. 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 railroad system.'' FRA 
will presume that an operation is an urban rapid transit operation if 
the system is not presumptively a commuter railroad (see discussion 
above) the operation is a subway or elevated operation with its own 
track system on which no other railroad may operate, has no highway-
rail crossings at grade, operates within an urban area, and moves 
passengers from station to station within the urban area as one of its 
major functions.
    Where neither the commuter railroad nor urban rapid transit 
presumptions applies, FRA will look at all of the facts pertinent to a 
particular operation to determine its proper characterization. FRA is 
likely to consider an operation to be urban rapid transit if:
     The operation serves an urban area (and may also serve its 
suburbs),
     Moving passengers from station to station within the urban 
boundaries is a major function of the system and there are multiple 
station stops within the city for that purpose (such an operation could 
still have the transportation of commuters as one of its major 
functions without being considered a commuter railroad), and
     The system provides frequent train service even outside 
the morning and evening peak periods.
    Examples of urban rapid transit systems include the Metro in the 
Washington, D.C. area, 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 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. FRA will exercise its 
jurisdiction over the operations conducted on the general system. 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 (see 49 CFR part 211), 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 (FTA), would apply to them.
    Another connection to the general system sufficient to warrant 
FRA's exercise of jurisdiction is a railroad crossing at grade where 
the rapid transit operation and other railroad cross each other's 
tracks. In this situation, 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. Also, where transit 
operations share highway-rail grade crossings with conventional 
railroads, FRA expects both systems to observe its signal rules. For 
example, FRA expects both railroads to observe the provision of its 
rule on grade crossing signals that requires prompt reports of warning 
system malfunctions. See 49 CFR part 234. FRA believes these 
connections present sufficient intermingling of the rapid transit and 
general system operations to pose significant hazards to one or both 
operations and, in the case of highway-rail grade crossings, to the 
motoring public. The safety of highway users of highway-rail grade 
crossings can best be protected if they get the same signals concerning 
the presence of any rail vehicles at the crossing and if they can react 
the same way to all rail vehicles.

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

    Although FRA could exercise jurisdiction over a rapid transit

[[Page 42546]]

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 or offer 
goods by rail.
    Mere use of a common right-of-way or corridor in which the 
conventional railroad and rapid transit operation do not share any 
means of train control, have a rail crossing at grade, or operate over 
the same highway-rail grade crossings 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. 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, 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 rapid transit 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 are connected to the general system will 
generally 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.
    5. The authority citation for part 211 is revised to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 20114, 20306, 20502-20504, 
and 49 CFR 1.49.

Appendix A

    6. A new Appendix A is added to part 211 to read as follows.

Appendix A to Part 211--Statement of Agency Policy Concerning 
Waivers Related to Shared Use of Trackage or Rights-of-Way by Light 
Rail and Conventional Operations

    1. By statute, the Federal Railroad Administration (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.
    2. Light rail equipment, commonly referred to as trolleys or 
street railways, is not designed to be used in situations where 
there is a reasonable likelihood of a collision with much heavier 
and stronger conventional rail equipment. However, existing 
conventional railroad tracks and rights-of-way provide attractive 
opportunities for expansion of light rail service.
    3. Light rail operators who intend to share use of the general 
railroad system trackage with conventional equipment and/or whose 
operations constitute commuter service (see Appendix A of 49 CFR 
part 209 for relevant definitions) will either have to comply with 
FRA's safety rules or obtain a waiver of appropriate rules. Light 
rail operators whose operations meet the definition of urban rapid 
transit and who will share a right-of-way or corridor with a 
conventional railroad but will not share trackage with that railroad 
will be subject to only those rules that pertain to any significant 
point of connection to the general system, such as a rail crossing 
at grade, a shared method of train control, or shared highway-rail 
grade crossings.
    4. Shared use of track refers to situations where light rail 
transit operators conduct their operations over the lines of the 
general system, and includes light rail operations that are wholly 
separated in time (temporally separated) from conventional 
operations as well as light rail operations operating on the same 
trackage at the same time as conventional rail equipment 
(simultaneous joint use). Where shared use of general system 
trackage is contemplated, FRA believes a comprehensive waiver 
request covering all rules for which a waiver is sought makes the 
most sense. FRA suggests that a petitioner caption such a waiver 
petition as a Petition for Approval of Shared Use so as to 
distinguish it from other types of waiver petitions. The light rail 
operator should file the petition. All other affected railroads will 
be able to participate in the waiver proceedings by commenting on 
the petition and providing testimony at a hearing on the petition if 
anyone requests such a hearing. If any other railroad will be 
affected by the proposed operation in such a way as to necessitate a 
waiver of any FRA rule, that railroad may either join with the light 
rail operator in filing the comprehensive petition or file its own 
petition.
    5. In situations where the light rail operator is an urban rapid 
transit system that will share a right-of-way or corridor with the 
conventional railroad but not share trackage, any waiver petition 
should cover only the rules that may apply at any significant points 
of connection between the rapid transit line and the other railroad. 
A Petition for Approval of Shared Use would not be appropriate in 
such a case.

I. Preliminary Jurisdictional Determinations

    Where a light rail operator is uncertain whether the planned 
operation will be subject to FRA's safety jurisdiction and, if so, 
to what extent, the operator may wish to obtain FRA's views on the 
jurisdictional issues before filing a waiver petition. In that case, 
the light rail operator (here including a transit authority that may 
not plan to actually operate the system itself) should write to FRA 
requesting such a determination. The letter should be addressed to 
Chief Counsel, Federal Railroad Administration, 1120 Vermont Ave., 
NW., Mail Stop 10, Washington, DC 20590, with a copy to the 
Associate Administrator for Safety at the same address at Mail Stop 
25. The letter should address the criteria (found in 49 CFR part 
209, appendix A) FRA uses to determine whether it has jurisdiction 
over a rail operation and to distinguish commuter from urban rapid 
transit service. A complete description of the nature of the 
contemplated operation is essential to an accurate determination. 
FRA will attempt to respond promptly to such a request. Of course, 
FRA's response will be based only on the facts as presented by the 
light rail operator. If FRA subsequently learns that the facts are 
different from those presented or have changed substantially, FRA 
may revise its initial determination.

II. General Factors to Address in a Petition for Approval of Shared Use

    1. Like all waiver petitions, a Petition for Approval of Shared 
Use will be reviewed by the Safety Board. A non-voting FTA liaison 
to the Safety Board will participate in an

[[Page 42547]]

advisory capacity 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.
    2. FRA resolves each waiver request on its own merits based on 
the information presented and the agency's own investigation of the 
issues. In general, the greater the safety risks inherent in a 
proposed operation the greater will be the mitigation measures 
required. 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.
    3. FRA's procedural rules give a general description of what any 
waiver petition should contain, including an explanation of the 
nature and extent of 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.
    A. Description of operations. You should explain the frequency 
and speeds of all operations on the line and the nature of the 
different operations. You should explain the nature of any 
connections between the light rail and conventional operations.
     If the light rail line will operate on any segments 
(e.g., a street railway portion) that will not be shared by a 
conventional railroad, describe those segments and their connection 
with the shared use segments. If the petitioner has not previously 
sought and received a determination from FRA concerning 
jurisdictional issues, explain, using the criteria set out in 49 CFR 
part 209, Appendix A, whether the light rail operation is, in the 
petitioner's view, a commuter operation or urban rapid transit.
     You should describe precisely what the respective hours 
of operation will be for each type of equipment on the shared use 
segments. 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 of a 
collision between conventional and light rail equipment to the point 
where the safety risks associated with joint use would be 
acceptable. You should explain the nature of such simultaneous joint 
use, the system of train control, the frequency and proximity of 
both types of operations, the training and qualifications of all 
operating personnel in both types of operations, and all methods 
that would be used to prevent collisions. You should also include a 
quantitative risk assessment concerning the risk of collision 
between the light rail and conventional equipment under the proposed 
operating scenario.
    B. Description of equipment. (1) You should 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, you should 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.
    (2) 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, you should 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.
    C. 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.
    (1) 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.
    (2) 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.
    D. Documentation of agreement with affected railroads. 
Conventional railroads that will share track with the light rail 
operation need not join as a co-petitioner in the light rail 
operator's petition. However, the petition should contain 
documentation of the precise terms of the agreement between the 
light rail operator and the conventional railroad concerning any 
actions that the conventional railroad must take to ensure effective 
implementation of alternative safety measures. For example, if 
temporal separation is planned, FRA expects to see the conventional 
railroad's written acceptance of its obligations to ensure that the 
separation is achieved. Moreover, if the arrangements for the light 
rail service will require the conventional railroad to employ any 
alternative safety measures rather than strictly comply with FRA's 
rules, that railroad will have to seek its own waiver (or join in 
the light rail operator's petition).

III. Waiver Petitions Involving No Shared Use of Track and Limited 
Connections Between Light Rail and Conventional Operations

    Even where there is no shared use of track, light rail operators 
may be subject to certain FRA rules based on limited, but 
significant connections to the general system.
    1. Rail crossings at grade. Where a light rail operation and a 
conventional railroad have a crossing at grade, several FRA rules 
may apply to the light rail operation at the point of connection. If 
movements at the crossing are governed by a signal system, FRA's 
signal rules (49 CFR parts 233, 235, and 236) apply, as do the 
signal provisions of the hours of service statute, 49 U.S.C. 21104. 
To the extent radio communication is used to direct the movements, 
the radio rules (part 220) apply. The track rules (part 213) cover 
any portion of the crossing that may affect the movement of the 
conventional railroad. Of course, if the conventional railroad has 
responsibility for compliance with certain of the rules that apply 
at that point (for example, where the conventional railroad 
maintains the track and signals and dispatches all trains), the 
light rail operator will not have compliance responsibility for 
those rules and would not need a waiver.
    2. Shared train control systems. Where a light rail operation is 
governed by the same train control system as a conventional railroad 
(e.g., at a moveable bridge that they both traverse), the light rail 
operator will be subject to applicable FRA rules (primarily the 
signal rules in parts 233, 235, and 236) if it has maintenance or 
operating responsibility for the system.
    3. Highway-Rail Grade Crossings. Light rail operations over 
highway-rail grade crossings

[[Page 42548]]

also used by conventional trains will be subject to FRA's rules on 
grade crossing signal system safety (part 234) and the requirement 
to have auxiliary lights on locomotives (49 CFR 229.125). Even if 
the conventional railroad maintains the crossing, the light rail 
operation will still be responsible for reporting and taking 
appropriate actions in response to warning system malfunctions.
    In any of these shared right-of-way situations involving 
significant connections, the light rail operator may petition for a 
waiver of any rules that apply to its activities.

IV. 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. 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,'' FRA's standards 
do not apply and the petition need not address those segments with 
regard to each specific rule from which waivers are sought with 
regard to shared use trackage.

1. Track, structures, and signals.

    A. Track safety standards (part 213). For general system track 
used by both the conventional and light rail lines, the track 
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.
    B. 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. 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 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.
    C. 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. If a grade crossing accident or warning activation 
failure occurs during light rail operations on general system track 
that is used by both conventional and light rail lines, the light 
rail operator must submit, or cooperate with the other railroad to 
ensure the submission of, a report to FRA within the required time 
frame (24 hours for an accident report, or 15 days for a grade 
crossing signal system activation failure report). 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.
    D. 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 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.
    E. 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 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 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. 2.

2. Motive power and equipment.

    A. Railroad noise emission compliance regulations (part 210). 
FRA issued this rule under the Noise Control Act of 1972, 42 U.S.C. 
4916, rather than under its railroad safety authority. Because that 
statute included a definition of ``railroad'' borrowed from one of 
the older railroad safety laws, 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. Note that this exception is 
broader than the sole exception to the railroad safety statutes 
(i.e., urban rapid transit not connected to the general system). The 
greater the integration of the light rail and conventional 
operations, the less likely this exception would apply.
    If the light rail equipment would normally meet the standards in 
this rule, there would be no reason to seek a waiver of it. 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. Note, however, that FRA lacks the authority 
to waive certain Environmental Protection Agency standards (40 CFR 
part 201) that underlie this rule. See 49 CFR 210.11(a).
    B. 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.
    C. Rear end marking devices (part 221). This part requires that 
each train occupying

[[Page 42549]]

or operating on main line track be equipped with, display, and 
continuously illuminate or flash a marking device on the trailing 
end of the rear car during periods of darkness or other reduced 
visibility. 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 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 failure of an approaching train to 
see the rear end of a leading train in time to stop short of it 
during periods of reduced visibility. 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 bears 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.
    D. 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.
    E. Locomotive safety standards (part 229). (1) 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. 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.
    (2) FRA is not likely to waive completely the provision (section 
229.125) of this rule concerning auxiliary lights designed to warn 
highway motorists of an approaching train. 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 on the general railroad 
system. If uniformity is sacrificed by permitting light rail systems 
to operate locomotives through the same grade crossings traversed by 
conventional trains with light arrangements placed in different 
locations on the equipment, safety could be compromised. 
Accordingly, the vehicle design should maintain the triangular 
pattern required of other locomotives and cab cars to the extent 
practicable.
    (3) FRA is aware that light rail headlights are likely to 
produce less than 200,000 candela. While some light rail operators 
may choose to satisfy the requirements of section 229.125 by 
including lights on their equipment of different candlepower 
controlled by dimmer switches, the headlights on the majority of 
light rail vehicles will likely not meet FRA's minimum requirement. 
However, based on the nature of the operations of light rail 
transit, FRA recognizes that waivers of the minimum candela 
requirement for transit vehicle headlights seems appropriate.
    F. Safety appliance laws (49 U.S.C. 20301-20305). (1) 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.
    (2) 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.
    (3) 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.
    G. Safety appliance standards (part 231). (1) 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.
    (2) 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.
    H. Passenger equipment safety standards (part 238). This part 
prescribes minimum Federal safety standards for railroad passenger 
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 , will be employed in connection with the 
use of the equipment on a specified shared-use rail line. This part 
also

[[Page 42550]]

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.

3. Operating practices.

    A. Railroad workplace safety (part 214). (1) 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.
    (2) 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.
    B. 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 should 
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.
    C. 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.
    D. 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 
(e.g., section 219.11(f) addresses the removal, under certain 
circumstances, of body fluid and/or tissue samples taken from the 
remains of any railroad employee who performs service for a 
railroad). (FRA recognizes that in the event of a fatal train 
accident involving a transit vehicle, whether involving temporal 
separation or simultaneous use of the same track, the National 
Transportation Safety Board will likely investigate and obtain its 
own toxicology test results.)
    E. 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.
    F. Railroad accident/incident reporting (part 225). (1) 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.
    (2) Any waiver FRA may grant in the accident/incident reporting 
area would have no effect on FRA's authority to investigate such 
incidents or on the duties of light rail operators and any other 
affected railroads to cooperate with those investigations. See 
sections 225.31 and 225.35 and 49 U.S.C. 20107 and 20902. Light rail 
operators should anticipate that FRA will investigate any serious 
accident or injury that occurs on the shared use portion of their 
lines, even if it occurs during hours when only the light rail 
trains are operating. Moreover, there may be instances when FRA will 
work jointly with FTA and the state agency to investigate the cause 
of a transit accident that occurs off the general system under 
circumstances that raise concerns about the safety of operations on 
the shared use portions. For example, if a transit operator using 
the same light rail equipment on the shared and non-shared-use 
portions of its operation has a serious accident on the non-shared-
use portion, FRA may want to determine whether the cause of the 
accident pointed to a systemic problem with the equipment that might 
impact the transit system's operations on the general system. 
Similarly, where human error might be a factor, FRA may want to 
determine whether the employee potentially at fault also has safety 
responsibilities on the general system and, if so, take appropriate 
action to ensure that corrective action is taken. FRA believes its 
statutory investigatory authority extends as far as necessary to 
address any condition that might reasonably be expected to create a 
hazard to railroad operations within its jurisdiction.
    G. Hours of service laws (49 U.S.C. 21101-21108). (1) 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 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.
    (2) 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.
    H. 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

[[Page 42551]]

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.
    I. 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.
    J. 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 and certified under 
part 240. Any light rail system unable to meet this burden would 
have to fully comply with the requirements of part 240. Moreover, 
where a transit system intends to operate simultaneously on the same 
track with conventional equipment, FRA will not be inclined to waive 
the part 240 requirements. In that situation, FRA's paramount 
concern would be uniformity of training and qualifications of all 
those operating trains on the general system, regardless of the type 
of equipment.

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

    1. 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 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.
    2. 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.
    3. 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 lists each of FRA's railroad safety rules and provides 
FRA's view on whether it is likely to grant a waiver in a particular 
area where temporal separation is assured. Where the ``Likely 
Treatment'' column says ``comply'' a waiver is not likely, and where 
it says ``waive'' a waiver is likely. Of course, FRA will consider 
each petition on its own merits and one should not presume, based on 
the chart, that FRA will grant or deny any particular request in a 
petition. This chart is offered as general guidance as part of a 
statement of policy, and as such does not alter any safety rules or 
obligate FRA to follow it in every case. 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 investigate accidents and injuries and take emergency action to 
address an imminent hazard of death or injury, would apply to these 
operations in all cases.
    4. 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. (The ``Comments'' column of the chart shows ``State Safety 
Oversight'' where waivers conditioned on such state oversight are 
likely.) FRA will coordinate with FTA and the state agency to 
address any serious 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. On certain subjects where waivers are not likely, the 
``Comments'' column of the chart makes special note of some 
important regulatory requirements that the light rail system will 
have to observe even if it is not primarily responsible for 
compliance with that particular rule.

[[Page 42552]]



           Possible Waivers for Light Rail Operations on the General Railroad System Based on Separation in Time From Conventional Operations
--------------------------------------------------------------------------------------------------------------------------------------------------------
           Title 49 CFR part                    Subject of rule                     Likely treatment                             Comments
--------------------------------------------------------------------------------------------------------------------------------------------------------
Track, Structures, and Signals
--------------------------------------------------------------------------------------------------------------------------------------------------------
213...................................  Track safety standards........  Comply (assuming light rail operator     If the conventional RR owns the track,
                                                                         owns track or has been assigned          light rail will have to observe speed
                                                                         responsibility for it).                  limits for class of track.
233, 235, 236.........................  Signal and train control......  Comply (assuming light rail operator or  If conventional RR maintains signals,
                                                                         its contractor has responsibility for    light rail will have to abide by
                                                                         signal maintenance).                     operational limitations and report
                                                                                                                  signal failures.
234...................................  Grade crossing signals........  Comply (assuming light rail operator or  If conventional RR maintains devices,
                                                                         its contractor has responsibility for    light rail will have to comply with
                                                                         crossing devices).                       sections concerning crossing
                                                                                                                  accidents, activation failures, and
                                                                                                                  false activations.
213, Appendix C.......................  Bridge safety policy..........  Not a rule. Compliance voluntary.......
--------------------------------------------------------------------------------------------------------------------------------------------------------
Motive Power and Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
210...................................  Noise emission................  Waive..................................  State safety oversight.
215...................................  Freight car safety standards..  Waive..................................  State safety oversight.
221...................................  Rear end marking devices......  Waive..................................  State safety oversight.
223...................................  Safety glazing standards......  Waive..................................  State safety oversight.
229...................................  Locomotive safety standards...  Waive, except for arrangement of         State safety oversight.
                                                                         auxiliary lights, which is important
                                                                         for grade crossing safety.
231*..................................  Safety appliance standards....  Waive..................................  State safety oversight; see note below
                                                                                                                  on statutory requirements.
238...................................  Passenger equipment standards.  Waive..................................  State safety oversight.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Operating Practices
--------------------------------------------------------------------------------------------------------------------------------------------------------
214...................................  Bridge worker.................  Waive..................................  OSHA standards.
214...................................  Roadway worker safety.........  Comply.................................
217...................................  Operating rules...............  Waive..................................  State safety oversight.
218...................................  Operating practices...........  Waive, except for prohibition on         State safety oversight.
                                                                         tampering with safety devices related
                                                                         to signal system, and blue signal
                                                                         rules on shared track.
219...................................  Alcohol and drug..............  Waive if FTA rule otherwise applies....  FTA rule may apply.
220...................................  Radio communications..........  Waive, except to extent communications   State safety oversight.
                                                                         with freight trains and roadway
                                                                         workers are necessary.
225...................................  Accident reporting and          Comply with regard to train accidents    Employee injuries would be reported
                                         investigation.                  and crossing accidents; waive as to      under FTA or OSHA rules.
                                                                         injuries; FRA accident investigation
                                                                         authority not subject to waiver.
228**.................................  Hours of service recordkeeping  Waive (in concert with waiver of         See note below on possible waiver of
                                                                         statute); waiver not likely for          statutory requirements.
                                                                         personnel who dispatch conventional RR
                                                                         or maintain signal system on shared
                                                                         use track.
239...................................  Passenger train emergency       Waive..................................  State safety oversight.
                                         preparedness.
240...................................  Engineer certification........  Waive..................................  State safety oversight.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Safety Appliance Statute. 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.
** Hours of Service Statute. 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.



[[Page 42553]]

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