Untangling the Regulatory Web

The Railway Age story I posted yesterday also included a sidebar focusing on how tricky it can be to apply a mode definition (light rail or commuter rail) to a system like Capital MetroRail, as well as the complex process for determining regulatory authority.

I'll bold the paragraph that first mentions Capital Metro. But I encourage you to read the whole thing:

Untangling the Regulatory Web
By Joe North, NJ Transit General Manager - Light Rail Operations
Railway Age – September 2008


Diesel light rail transit (DLRT) vehicles that do not comply with current FRA regulations have significantly lowered capital and operating costs for certain types of medium capacity rail transit projects. DLRT works best when it can be used on existing tracks where the volume of passenger and freight traffic can be adequately operated within the constraints of temporally-separated freight and passenger windows. However, there are two areas of regulatory complexity that could negatively impact future DLRT projects.

First, transit agencies, especially properties building their first rail transit system, may not understand the FRA/FTA joint Policy on Shared-use Operations as it relates to the FRA’s regulatory authority. Some transit agencies mistakenly believe that shared-use regulatory authority is vested completely in FTA under 49 CFR 659, the State Safety Oversight Rule for Rail Fixed Guideway Systems. The joint policy is clear as it related to FRA’s regulatory authority. Shared-use transit operations on shared track on the general railway system are regulated first and foremost by FRA regulations, then by whatever waivers the FRA may grant, in conjunction with the appropriate State Safety Oversight rules under 49 CFR 659.

Second, FRA has statutory authority to make a jurisdictional determination as to your “particular type” of passenger operation (see 49 CFR 209, Appendix A). This means that FRA will use its definitions of Commuter Railroad and Urban Rapid Transit Operations to determine the extent of regulatory authority over your shared-use project. A typical shared-use project utilizing non-compliant passenger equipment is not likely to fit either mode definition. FRA recognizes this definitional problem and uses a case-by-case approach to identify specific commuter rail and urban rapid transit characteristics that they are “likely to consider” in determining the extent of their regulatory authority.

I refer to this methodology as determining the “mode” of your system because past decisions show that it can result in one of two responses. FRA may determine that your project is a light rail system operating a non-compliant vehicle under FRA regulations with a shared-use waiver, or it may determine that your project is a commuter railroad. The latter response can be problematic for the agency that has already purchased a non-compliant vehicle without understanding the potential consequences of jurisdictional determination.

FRA’s criteria for exercising jurisdictional determination considers factors such as the characteristics of the service area (urban, suburban, metropolitan), trip length, trip purpose, and service frequencies. Using these factors, the RiverLINE and Sprinter shared-use systems were determined to be characteristic of urban rapid transit and currently operate non-compliant vehicles under a combination of FRA regulations, shared-use waivers, and state safety oversight programs. Triangle Transit’s suspended project between Raleigh and Durham and Capital Metro’s almost completed project in Austin were determined to be commuter rail using the same factors. An extenuating circumstance for Austin was Texas DOT’s initial position that it would not provide State Safety Oversight under 49 CFR 659. All four systems share similar service and operational characteristics, but two were granted waivers to operate as light rail and two were determined to be commuter railroads. Neither the relevancy of the factors used to determine jurisdiction, nor how they have been applied, are easy to understand.

The transit agency’s choice of vehicle can be a sensitive subject in and of itself on any rail project. On shared-use projects, the selection of a non-compliant DLRT vehicle is usually a critical factor for the agency trying to advance medium-capacity project capable of in-street operations. However, FRA regulations state that the choice of vehicle is not a factor in determining jurisdictional authority. Conflict is inevitable when one party views an element of a project as critical, and the other says it has no bearing. That conflict can be heightened when, as in the case of Austin, the non-compliant vehicle is on site before FRA has made its jurisdictional determination. Rail transit projects that may be viable on an operating and cost basis as light rail may not be as viable as commuter rail. Simply put, the additional capital and operating cost of commuter rail may be overkill for the typical medium-capacity DLRT vehicle.

Consideration should be given to shared-use policy changes that allow the agency to self-select a mode through a choice of compliant or non-compliant vehicles, in conjunction with FRA requirements for temporal separation and other operational safety requirements for shared-use systems selecting non-compliant vehicles. Self-selection of mode by vehicle type is likely to be a controversial topic with federal regulators and with transit agencies that are philosophically opposed to any FRA involvement in rail transit. However, self-selection has a simple and attractive logic. If the mission is to move medium-sized passenger loads on shared track where freight and passenger business needs can be addressed within the constraints of a temporally separated environment, choose a non-compliant vehicle and operate as a light rail system under FRA’s shared-use regulations. If the mission is to move high volumes of passengers where freight and business needs cannot be adequately accommodated in a temporally-separated operating environment, chose a compliant vehicle and operate simultaneous passenger and freight service under FRA regulations for commuter and freight railroads.

In the meantime, the best strategy for any transit agency interested in developing a shared-use project is to follow FRA’s policy advice and meet with FRA as soon as possible. Ideally, this should be done during the project definition phase and no later than the beginning of preliminary engineering. Transit agencies should recognize the FRA’s broad regulatory authority over shared-use rail transit projects and focus more on obtaining a jurisdictional determination that is compatible with their project mission. The critical shared-use issue for transit agencies to be concerned with is not the FRA’s regulatory authority over shared-use operations. It is the FRA’s jurisdictional determination process and how it relates to defining your project as light rail or commuter rail.