1. FRA Regulation of Shared Track Operations: Understanding the Difference Between Commuter/Freight and Transit/Freight Operating Environments Kevin M. Sheys, Partner kevin.sheys@klgates.com K&L Gates, Washington, DC www.klgates.com 2008 APTA Rail Conference June 3, 2008 San Francisco, CA

2. History & Background Beginning 1999, a series of shared track waiver petitions (i.e., shared with freight) Based in part on temporal separation www.klgates.com

3. History & Background (cont’d) At about the same time, FRA began to develop Shared Use Policy, including policy on transit/freight shared track waivers Published July 10, 2000 www.klgates.com

4. Capital Metropolitan Transportation Authority (CMTA) Sought waiver in May, 2006 Based in part on temporal separation www.klgates.com

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

6. Compare Utah Transit Authority TRAX Waiver to CMTA Waiver Worker/Operations Waivers FRA Regulation:CMTAUTA TRAX Waiver Part 219 Control of Alcohol and Drug UseDeniedGranted Part 225 Accident and Incident ReportingDeniedGranted – Injury Reporting Denied – Accident Reporting Part 239 Passenger Train Emergency PreparednessDeniedGranted Part 240 Qualification and Certification of Locomotive EngineersDeniedGranted www.klgates.com

7. Compare UTA TRAX Waiver to CMTA Waiver (cont’d) Rolling Stock/Vehicle Waivers FRA Regulation:CMTAUTA TRAX Waiver Part 221 Rear End Marking DevicesPending – data requestGranted Part 223 Safety Glazing StandardsGranted – conditionsGranted Part 229 Locomotive Safety Standards Locomotive Identification GrantedN/A Aluminum main reservoirsDenied – refileN/A Clearance above top of railPending – data requestGranted Headlights and auxiliary lightsDenied – refileGranted www.klgates.com

8. Compare UTA TRAX Waiver to CMTA Waiver (cont’d) Rolling Stock/Vehicle Waivers (cont’d) FRA Regulation:CMTAUTA TRAX Waiver Part 231 Safety Appliance StandardsDenied – may not be neededGranted Part 238 Passenger Equipment Safety Standards Fire SafetyDenied – refileN/A Train electronic hardware and software safetyDenied – may not be neededN/A Emergency window exitGranted – data requestGranted Static end strengthGranted – data requestGranted Anti-climbing mechanismGranted – data requestGranted www.klgates.com

9. Compare UTA TRAX Waiver to CMTA Waiver (cont’d) Rolling Stock/Vehicle Waivers (cont’d) FRA Regulation:CMTAUTA TRAX Waiver Part 238 Passenger Equipment Safety Standards (cont’d) Link between coupling mechanism and car body Pending – data requestGranted Forward-facing end structure, collision & corner postsGranted Rollover strength/side structureGranted Truck to car body attachmentGranted, except on truck under center unit N/A Locomotive fuel tanksDenied on main fuel tank N/A Interior fittingsGranted – conditionsGranted www.klgates.com

10. Explanation? FRA regulates commuter rails in shared track environments differently than it regulates transit in shared track environments Especially on worker/operations issues FRA has jurisdiction over both, but exercises it differently www.klgates.com

11. Explanation? (cont’d) This is the primary reason the CMTA waiver decision is so different than the prior series of waiver decisions It is not the only reason www.klgates.com

12. FRA Jurisdiction FRA has jurisdiction over commuter railroads, regardless of connection to the general railroad system FRA has jurisdiction over rail transit operations if connected to the general railroad system www.klgates.com

13. FRA Jurisdiction (cont’d) Sometimes confusion or differences of opinion arise about the sufficiency of the connection in rail transit operations Not an issue in shared track operations www.klgates.com

14. Commuter Rail or Rail Transit? FRA Shared Use Policy Chicago Transit Authority case Triangle Transit Authority case www.klgates.com

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

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

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

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

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

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

21. Strategies Know whether you are commuter rail or rail transit before going in with FRA waiver on shared track operation www.klgates.com

22. Strategies (cont’d) Unless absolutely clear, analyze your facts under the FRA Shared Use Policy and Case Law www.klgates.com

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

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