Section

[Code of Federal Regulations]
[Title 49, Volume 4]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR211.77]

[Page 71-81]

TITLE 49--TRANSPORTATION

CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION

PART 211--RULES OF PRACTICE--Table of Contents

Subpart F--Interim Procedures for the Review of Emergency Orders

Sec. 211.77 Appeal to the Administrator.

(a) Any party aggrieved by the final decision of a presiding officer
(other than the Administrator) may appeal to the Administrator. The
appeal must be filed within twenty (20) days from issuance of the
presiding officer's decision and must set forth the specific exceptions
of the party to the decision, making reference to the portions of the
administrative record which are believed to support the exceptions. The
notice of appeal and any supporting papers shall be accompanied by a
certificate stating that they have been served on all parties to the
proceeding.
(b) [Reserved]

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

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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 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

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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.
[sbull]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.
[sbull]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.
[sbull]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

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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 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

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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. 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

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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 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.

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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 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

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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

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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 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

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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.

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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 If the conventional RR
rail operator owns owns the track, light
track or has been rail will have to
assigned observe speed limits
responsibility for it). for class of track.
233, 235, 236........................ Signal and train Comply (assuming light If conventional RR
control. rail operator or its maintains signals,
contractor has light rail will have
responsibility for to abide by
signal maintenance). operational
limitations and report
signal failures.
234.................................. Grade crossing signals. Comply (assuming light If conventional RR
rail operator or its maintains devices,
contractor has light rail will have
responsibility for 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 Waive.................. State safety oversight.
standards.
221.................................. Rear end marking Waive.................. State safety oversight.
devices.
223.................................. Safety glazing Waive.................. State safety oversight.
standards.
229.................................. Locomotive safety Waive, except for State safety oversight.
standards. arrangement of
auxiliary lights,
which is important for
grade crossing safety.
231*................................. Safety appliance Waive.................. State safety oversight;
standards. see note below on
statutory
requirements.
238.................................. Passenger equipment Waive.................. State safety oversight.
standards.
--------------------------------------
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 State safety oversight.
prohibition on
tampering with safety
devices related to
signal system, and
blue signal rules on
shared track.
219.................................. Alcohol and drug....... Waive if FTA rule FTA rule may apply.
otherwise applies.
220.................................. Radio communications... Waive, except to extent State safety oversight.
communications with
freight trains and
roadway workers are
necessary.
225.................................. Accident reporting and Comply with regard to Employee injuries would
investigation. train accidents and be reported under FTA
crossing accidents; or OSHA rules.
waive as to injuries;
FRA accident
investigation
authority not subject
to waiver.
228**................................ Hours of service Waive (in concert with See note below on
recordkeeping. waiver of statute); possible waiver of
waiver not likely for statutory
personnel who dispatch requirements.
conventional RR or
maintain signal system
on shared use track.
239.................................. Passenger train Waive.................. State safety oversight.
emergency 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.

[65 FR 42546, July 10, 2000]

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